Logan Harper is the community relations coordinator for MPA@UNC, an online master’s degree in public administration offered through the University of North Carolina at Chapel Hill. He is also a contributor to Online MPA Degrees — a top resource for MPA rankings. Follow Logan for program updates and news: @MPAatUNC.
The Freedom of Information Act (FOIA) requires the federal government to disclose government records to private individuals after they submit a formal request. While the FOIA only applies to the federal government, each state in the U.S. has developed similar laws governing the disclosure of government records under “right-to-know” laws. In the years following 9/11, the use of security cameras has become increasingly common. As a result, the question of whether or not the videos created by these cameras are “public records” under the local right-to-know laws has become an important topic for discussion.
Videos are Public Records
Generally speaking, records created and kept in the course of government business must be disclosed under right-to-know laws unless there is an exception that prevents disclosure of all or part of the record requested. Video recordings, whether on tape or in a digital medium, with or without an audio component, are considered public records for the purpose of right-to-know laws, even though they are not a traditional “writing.” Thus, the question becomes whether or not there is an exception that prevents their disclosure.
The Privacy Exception
Privacy is one exception that is often raised by local governments to reject a request for disclosure and is an increasing concern with respect to the disclosure and production of security videos.
Both public and private employees have a reasonable expectation of privacy in their personnel files. Surprisingly, for public employees, videos taken in the course of their employment may actually be subject to disclosure to a private citizen unless the local government can articulate and prove a viable privacy exception.
Surveillance videos that were created for the purpose of monitoring employee activity that may become part of an employee’s personnel file may not be subject to disclosure, according to Frayda Bluestein, professor of public law and government at UNC-Chapel Hill’s School of Government. Professor Bluestein was quoted in a recent post on Coates’ Canons: NC Local Government Law Blog. The question is whether the video contains information that would typically be a part of the employee’s personnel record.
Traditionally, documents created by public schools and state universities that relate to a student’s academic performance, disciplinary action, medical care received through the school, or other personal information are protected from disclosure under the Family Educational Rights and Privacy Act (FERPA).
The extensive use of security cameras on school campuses has raised a number of questions as to whether student privacy is violated by disclosure of surveillance videos. In a recent white paper, the Student Press Law Center addressed the balancing act that must occur with respect to student records protected under FERPA and local right-to-know laws. Specifically, FERPA protects records that relate to the academic life of a student. As a result, surveillance videos taken in school buses or of school parking lots may be subject to disclosure.
Accident reports, arrest reports, and many written documents are public records subject to disclosure under local right-to-know laws. However, police dashboard cameras and police surveillance videos may or may not be subject to disclosure depending on local laws. In Oklahoma, for example, police dashboard camera recordings are considered evidence and are not public records. In Washington state, on the other hand, the videos are considered public records and are subject to disclosure, but the police may withhold the videos for up to three years to protect information in criminal investigations. Checking with your local government is the best way to determine the current law in your area.
Concerns about employee and student privacy or the police interest in criminal investigations may prevent disclosure of surveillance videos. But because there is no bright line, each case must be examined on an individual basis to reach the proper conclusion.