Law Enforcement Body-Worn Camera Privacy Act

On July 13, 2017 Michigan Gov. Rick Synder signed into law Public Act 85 of 2017. The Act, which has been labeled as the “Law Enforcement Body-Worn Camera Privacy Act,” pertains to recordings created by law enforcement officers wearing a video recording device during their police activities. Although it is estimated that less than 10% of law enforcement agencies in the State of Michigan have officers equipped with “body cameras,” that percentage is likely to increase over the years as other agencies explore the benefits of such recordings.

The new law provides that any disclosure of an audio or video recording that is recorded by body-worn cameras will be subject to the protections provided to crime victims under the Crime Victim’s Rights Act.  Recordings that are made in a private place by a law enforcement officer with a body-worn camera would be exempt from disclosure under the Freedom of Information Act (FOIA) except under certain circumstances. The Act allows individuals to request a copy of the recording except for a recording that was exempt under FOIA or would disclose the personally identifiable information of a victim, recorded by a law enforcement officer with a body-worn camera in a private place.

The law specifies that a body-worn camera recording that a police officer retained in connection with an on-going criminal or internal investigation, would be exempt from disclosure under FOIA.

The Act also provides exemptions from disclosure if the disclosure would

• interfere with law enforcement proceedings,
• deprive anyone of the right to a fair trial,
• constitute an unwarranted invasion of personal privacy,
• disclose the identity of a confidential source,
• disclose police investigative techniques or procedures, or
• endanger the life or physical safety of law enforcement personnel.

The law requires that a law enforcement agency must retain an evidentiary audio and video recording recorded by a body-worn camera for not less than 30 days from the date the recording is made. Such recordings that are the subject of an ongoing criminal or internal investigation or an ongoing criminal prosecution or civil action, must be maintained until the completion of the investigation or legal proceeding. In addition, any agency must retain the audio and video recordings by body-worn camera for not less than three years after the date the recording is made “if the recording is relevant to a formal complaint against a law enforcement officer or agency.”

The new law stipulates that an agency may charge a fee for copying the recording but the fee must be calculated in compliance with the Freedom of Information Act. Finally, a law enforcement agency that uses body-worn cameras must develop a written policy regarding the use of the cameras and the maintenance and disclosure of the recordings that complies with the requirement of this new law.

Jeff Clark is a partner in our Livonia office and is the head of the Firm’s Municipal Law practice group. He concentrates his practice on municipal law, FOIA/OMA, general liability defense and prevention and personal injury defense litigation. He may be reached at (734) 261-2400 or jclark@cmda-law.com.