The 2015 Legislative Session ended on Friday, May 1, 2015 without finishing the law enforcement officers’ body worn cameras legislative package. The Legislature did pass the public records exemption legislation (SB 248), but the policy guidelines portion (HB 57 & SB 7080) of the package did not complete the legislative process. The passage of the complete package was a priority for the Florida PBA, because each bill had critical components that protect law enforcement officers and the public from the possible unintended consequences that body worn camera recordings may pose.
SB 248 created the public records exemptions for body worn cameras. This legislation was designed to deal with privacy concerns and, although the bill was the more controversial piece of the package, it completed the legislative process while the more benign legislation HB 57 & SB 7080 failed to pass.
The following exemptions are contained in the
SB 248 legislation:
– Is taken within the interior of a private residence;
– Is taken on the property of a facility that offers health care, mental health care, or social services;
– Is taken at a place where a person recorded or depicted in the recording has a reasonable expectation of privacy;
If the audio or video recording or a portion of such recording is exempt or confidential and exempt pursuant to another exemption in s. 119.071, F.S., that exemption applies and determines under which circumstances, if any, the recording or a portion of the recording may be disclosed to the public.
The exemption is subject to the Open Government Sunset Review Act and stands repealed on October 2, 2020, unless reviewed and saved from repeal though reenactment by the Legislature. The bill also provides a statement of public necessity for the exemption.
The bill authorizes the law enforcement agency having custody over the recording to disclose the recording to another law enforcement agency in furtherance of that agency’s official duties and responsibilities and specifies persons who may inspect the recording.
Applicable to the new exemption, a law enforcement agency must have a retention policy of at least 90 days for the audio or video recordings unless the recording is part of an active criminal investigation or criminal intelligence operation or a court orders its retention for a longer period. A law enforcement agency must disclose its records retention policy for recordings under the new exemption.
HB 57 & SB 7080 did not complete the process and therefore creates a serious situation for law enforcement officers wearing body cameras.
The legislation attempted to create a list of specific guidelines an agency’s policy must contain if choosing to implement body cameras.
– General guidelines for the proper use, maintenance, and storage of body cameras;
– Any limitations on which law enforcement officers are permitted to wear body cameras;
– Any limitations on the law enforcement activities and encounters in which law enforcement officers are permitted to wear body cameras; and
– General guidelines for the proper storage, retention, and release of audio and video data recorded by body cameras.
The bill requires law enforcement agencies to provide policies and procedures training to all personnel who use, maintain, store, or release body camera recording data.
The bill also exempted law enforcement agencies employing the use of body cameras from the chapter 934 two party consent requirements.
Background on Chapter 934, F.S.:
Chapter 934, F.S., governs the security of various types of communications in the State, and limits the ability to intercept, monitor, and record such communications. The Chapter provides for criminal penalties and civil remedies in circumstances where communications are intercepted in violation of Chapter 934, F.S. Additionally, s. 934.03(2)(d), F.S., creates the “two party consent rule,” which requires that all parties to a communication or conversation must consent to having the communication recorded before it can be done so legally. Chapter 934, F.S., provides a limited exception for law enforcement-related recordings when “such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.”
Just imagine attempting to gain consent from everyone in a crowd.
The Florida PBA strongly urges agencies to cease utilizing body worn cameras unless an acceptable alternative in lieu of the Chapter 934 exemption can be agreed to by all parties. The potential for criminal and civil harm against law enforcement officers is too great to be ignored.
Written by Matt Puckett, Executive Director , Florida Police Benevolent Association