Law Enforcement: Advanced PIA and Body Cameras - PowerPoint Presentation

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Law Enforcement: Advanced PIA and Body Cameras - PPT Presentation

Law Enforcement Advanced PIA and Body Cameras Tamara Smith Michelle Case Assistant Attorneys General Open Records Division What we will cover Releasing redacting and requesting a ruling Additional considerations for Govt Code552108 ID: 769785

information request slide camera request information camera slide body recording requestor 1701 552 section 661 proper code

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Law Enforcement:Advanced PIA and Body Cameras Tamara Smith Michelle Case Assistant Attorneys General Open Records Division

What we will cover:Releasing, redacting, and requesting a ruling Additional considerations for Gov’t Code§552.108 Texas Homeland Security Act provisionsBody camera recordings Advanced PIA and Body Cameras

Duties Upon Receipt of Proper Request:Promptly release the requested information Request a ruling Receipt of a Request (Slide 1 of 4)

Duties Upon Receipt of Proper Request:Promptly release the requested information Request a ruling Previous Determinations – Two TypesReceipt of a Request (Slide 2 of 4)

Duties Upon Receipt of Proper Request:Promptly release the requested information Request a ruling Previous Determinations – Two TypesInformation Not Protected by Discretionary Exceptions Receipt of a Request (Slide 3 of 4)

What should I do if I am redacting information from what I am providing requestor or what I am providing to your office for a ruling? Follow any statutory requirements Ex. Gov’t Code§552.130(d) and (e)If you will redact or have redacted information from what you send to our office, tell us and explain the authority. Receipt of Request: Redacting Information

Does the requestor have a right of access? Self, Parents of Minor, and Authorized Representatives Criminal Justice Agencies Criminal History Record Information (“CHRI”)Section 550.065 of the Transportation CodeAccess to CR-3 Accident ReportsArticle 2.1396 of the Code of Criminal ProcedureArrestee access to video of DWI Receipt of a Request: Right of Access (Slide 1 of 7)

Does the requestor have a right of access? Self, Parents of Minor, and Authorized Representatives Privacy Interests -- Gov’t Code§552.023 Common-law and constitutional privacyExceptions that protect privacy interests - ex. sections 552.130, 552.136, 552.117, 552.1175 Gov’t Code§552.137(b) Fam. Code§261.201(k) Fam. Code§58.008(d)(3)-(4) Receipt of a Request: Right of Access (Slide 3 of 7)

Does the requestor have a right of access? Criminal Justice Agencies Fam. Code§58.008(d)(2)Fam. Code§58.008(e) does not apply when the requestor is a criminal justice agencyAccess prevails over common-law privacy and general exceptions (ex. 552.103, 552.108, 552.1175)Access does not prevail over Gov’t Code§552.130 CHRI Access under chapter 411 of the Government Code Receipt of a Request: Right of Access (Slide 4 of 7)

Does the requestor have a right of access? Criminal History Record Information (“CHRI”) Criminal justice agencies Sections 411.087(a)(2) and 411.089(a) of the Government Code Must be for criminal justice purposeState agenciesSection 411.087(a)(2) and subchapters F and E-1 of chapter 411 of the Government Code Federal agencies Receipt of a Request: Right of Access (Slide 5 of 7)

Does the requestor have a right of access? 550.065(c) and (c-1) of the Transportation Code Access to CR-3 Accident ReportsArticle 2.1396 of the Code of Criminal ProcedureArrestee access to video of DWI Receipt of a Request: Right of Access (Slide 6 of 7)

What should I do if the requestor has a right of access? If you have released or will release certain information pursuant to a right of access, tell us. Ex. We have released the responsive CR-3 to this requestor pursuant to Transp. Code§ 550.065(c).Ex. We have released CHRI to this requestor pursuant to chapter 411 of the Government Code and raise Gov’t Code§552.108(a)(1) for the remaining requested information. Ex. We have released the DWI dash camera video to this requestor pursuant to art. 2.1396 of the Code of Criminal Procedure. Receipt of a Request: Right of Access (Slide 7 of 7)

What is intergovernmental transfer? Discretionary – “may” release Between Texas governmental bodiesFor information that is not confidential by statute with release provisions (ex. Gov’t Code§552.130 and Fam. Code§261.201)If you choose to release under doctrine, it is not a voluntary release under Gov’t Code§552.007. If you aren’t sure, request a ruling. Receipt of a Request: Intergovernmental Transfer

What should we do if we receive multiple requests for the same or similar information? To combine or to not combine: things to consider Tell our office if you are sending in subsequent requests and identify themEx. Your internal ID# or our assigned OAG ID#Call the ORD Hotline to get our OAG ID# Ex. Request from Alexander Hamilton received on November 2, 2018. Receipt of a Request: Multiple Requests

What information should I send your office when requesting a ruling? Items required under Gov’t Code§552.301 Responsive information you seek to withholdRepresentative sample (generally) – Gov’t Code§552.301(e)(1)(D) Receipt of a Request: Submitting Information

Are the interests of any third parties at issue? Other governmental bodies Gov’t Code§552.108 representationGov’t Code§552.304Private third partiesGov’t Code§552.305Tell us who you notifiedNat’l Archives & Records Admin. v. Favish , 541 U.S. 157 (2004) – surviving family members’ constitutional privacy interests in information relating to deceased relatives Receipt of a Request: Other Interests

Basic Information: Reminders Does not include : DOBs, information subject to Gov’t Code§552.130, the identity of witnesses, or the identity of a victim who is not a complainantIncludes: Detailed description of offense, names of investigating officers, and arrestee name and SSNCan raise other exceptions for basic information Gov’t Code§552.103 will generally not protect basic information of a crime 552.108 Government Code: Basic Information (Slide 1 of 2)

If you are raising section 552.108 for an offense report: Tell us you have released basic information and/or show us what you released as basic information by clearly labeling information Will you redact the living arrestee’s SSN under Gov’t Code§552.147(b), which you can do without seeking a ruling from our office?If you are releasing more than what is considered basic information, will you redact information pursuant to another authority that authorizes you to do so? 552.108 Government Code: Basic Information (Slide 2 of 2)

Raising section 552.108(a)(1) for personnel documents, administrative information, and/or Internal Affairs investigations How does it relate to a pending criminal investigation or prosecution?Does your governmental body have the law enforcement interest in the criminal investigation or prosecution? If not, you might need to notify the entity with law enforcement interest of the request 552.108 Government Code: Personnel-Administrative-IA (Slide 1 of 2)

Raising section 552.108(a)(1) for personnel documents, administrative information, and/or Internal Affairs investigations How does it relate to a pending criminal investigation or prosecution?Does your governmental body have the law enforcement interest in the criminal investigation or prosecution? If not, you might need to notify the entity with law enforcement interest of the requestIs it a completed administrative investigation? If Gov’t Code§552.022(a)(1) applies, Gov’t Code§552.103 will not 552.108 Government Code: Personnel-Administrative-IA (Slide 2 of 2)

What is the “552.108(a)(1) Previous Determination”?Does it apply to me? What are the requirements? 552.108 Government Code:Previous Determination (Slide 1 of 3)

What is the “552.108(a)(1) Previous Determination”?Does it apply to me? You must have requested and obtained the previous determination from our office What are the requirements? Gov’t Code§552.108(a)(1) appliesNo requestor right of accessBasic information (or more) must be released within 5 business days after receiving the requestMust provide certain notice to requestor Requestor has not previously requested the information under same scheme 552.108 Government Code: Previous Determination (Slide 3 of 3)

Sections 418.176 through 418.182 of the Government Code: Gov’t Code§418.176 – Certain information relating to emergency response providersGov’t Code§418.177 – Information relating to certain risk or vulnerability assessmentGov’t Code§418.179 – Information relating to encryption codes and security keys for public communications system NOTE : For these three sections, information must be collected, assembled, or maintained for purpose of preventing, detecting, responding to, or investigating act of terrorism or related criminal activity. Texas Homeland Security Act (Slide 1 of 5)

Gov’t Code§418.178 – Pertains to certain information relating to construction or assembly of explosive, chemical, biological, radiological, or nuclear weapons, including certain materials or specific locations of certain materials Gov’t Code§418.180 – Certain information prepared for U.S. relating to terrorism that is required to be kept confidential Texas Homeland Security Act (Slide 2 of 5)

Gov’t Code§418.181 – Information that identifies technical details of critical infrastructure to act of terrorism Gov’t Code§ 421.001(2) defines “critical infrastructure”Ex. Locations of underground utilities, details of city’s backflow prevention system, or blueprint of prisonGov’t Code§418.182 – Certain information relating to security systems protecting public or private property from act of terrorism or related criminal activity Ex. Security camera footage of state capitol Ex. Map with locations of security cameras in jail Texas Homeland Security Act (Slide 3 of 5)

Homeland Security Act (“HSA”) provisions do not apply automatically. We need your explanation of how a HSA provision applies to the records at issue. Texas Homeland Security Act (Slide 4 of 5)

Did you receive a “7-Day Letter” from our office pursuant to Gov’t Code§552.303 asking about an HSA provision? Respond in 7 calendar days, not business days Answer our question directly and completelyQuestions? Call the Open Government Hotline Texas Homeland Security Act (Slide 5 of 5)

Body Camera Requests Occupations Code § 1701.661 Views expressed are those of the presenters, do not constitute legal advice, and are not official opinions of the Office of the Texas Attorney General.

Is it a proper request for a body camera recording? The request for information must state: Date and approximate time of recordingSpecific location where recording occurred Name of at least one person who is a subject of the recording Occ. Code § 1701.661(a) - All elements must be present to be a proper request for body camera video. Elements of a Proper Body Camera Request (Slide 1 of 2)

If the request is missing any of the elements listed in section 1701.661(a), it is not a proper request for body camera video. Note : Occ. Code§1701.661(b) says the requestor can ask for the information again. If it is a proper request, the 552.301 deadlines are extended to 20 and 25 business days. Elements of a Proper Body Camera Request (Slide 2 of 2)

Requestor Name: Alexander Hamilton Request for: All information pertaining to case number 2018-1458, including any 911 audio or body camera videos.Proper Body Worn Camera Request? (Slide 1 of 12)

Requestor Name: Alexander Hamilton Request for: All information pertaining to case number 2018-1458, including any 911 audio or body camera videos.Proper Body Worn Camera Request? (Slide 2 of 12) This is not a proper body camera request – missing date, time, location, subject name . Note : This is still a proper request for public information for the non-body camera information that is responsive.

Requestor Name: Aaron Burr Request for: All information pertaining to case number 2018-5659 in which Alexander Hamilton was arrested around 7 p.m. at the intersection of Congress Avenue and 9th Street. Proper Body Worn Camera Request? (Slide 4 of 12) This is not a proper body camera request – no date mentioned. Note : This is still a proper request for public information for the non-body camera information that is responsive. .

Requestor Name: Eliza Hamilton Request for: All information pertaining to a theft incident involving Maria Reyolds on December 14, 2017, at the Richard Rodgers Theatre. Proper Body Worn Camera Request? (Slide 6 of 12) Not a proper body camera request – no time mentioned. Note : This is still a proper request for public information for the non-body camera information that is responsive.

Requestor Name: James Madison Request for: The investigation file regarding the arrest of John Laurens around 1 a.m. on December 3, 2017, for burglary of habitation.Proper Body Worn Camera Request? (Slide 8 of 12) Not a proper body camera request – no location mentioned. Note : This is still a proper request for public information for the non-body camera information that is responsive.

Requestor Name: NBC News Request for: Officer George King’s body camera video pertaining to a shoplifting incident at Walmart on December 3, 2018 at about 7 p.m. Proper Body Worn Camera Request? (Slide 9 of 12)

Requestor Name: NBC News Request for: Officer George King’s body camera video pertaining to a shoplifting incident at Walmart on December 3, 2017 at about 7 p.m. Proper Body Worn Camera Request? (Slide 10 of 12) Not a proper body camera request – no subject of the recording named.

Requestor Name: George Washington Request for: Information pertaining to the crash I was in. (Please see attached CR-3 report.)Proper Body Worn Camera Request? (Slide 11 of 12)

Requestor Name: George Washington Request for: Information pertaining to the crash I was in. (Please see attached CR-3 report.)Proper Body Worn Camera Request? (Slide 12 of 12) This is a proper body camera request if the CR-3 has the required information for the recording. Proceed to section 1701.661(h).

Section 1701.661(h) of the Occupations Code The recording was required to be made by law or the policies of the law enforcement entity; andRelates to a law enforcement purpose – i.e. it is not purely personal. Does (h) apply? If one or both of the above are not true, the recording is confidential under section 1701.661(h). If both of the above are true, proceed to subsections 1701.661(c) and (d). Section 1701.661(h) (Slide 2 of 6)

Officer George King forgets to turn off his body worn camera and the recording captures his discussion about picking up milk from the store when his work shift is over. Section 1701.661(h) (Slide 4 of 6) The recording is confidential under Occ. Code§1701.661(h) and must be withheld under Gov’t Code§552.101.

The body camera of Officer George King captures his on foot chase of a robbery suspect through a neighborhood. Section 1701.661(h) (Slide 5 of 6)

The body camera of Officer George King captures his on foot chase of a robbery suspect through a neighborhood. Section 1701.661(h) (Slide 6 of 6) The recording is not confidential under (h). Proceed to sections 1701.661(c) and (d).

Sections 1701.661(c) and (d) of the Occupations Code Could the recording be used as evidence in a criminal prosecution? No. – The recording is confidential under section 1701.661(c). Yes. – Proceed to section 1701.660(a). Note : If the recording could not be used as evidence in a criminal prosecution, you need to explain why. Sections 1701.661(c) and (d)

Section 1701.660(a) of the Occupations Code If the recording: Documents use of deadly force by a peace officer orRelates to an administrative or criminal investigation of an officer Ask: Is the criminal or administrative investigation pending? Yes. – The recording is confidential, but there is discretion to release if it would further a law enforcement purpose. No. – Proceed to section 1701.661(f). Section 1701.660(a)

Section 1701.661(f) of the Occupations Code Two aspects of (f) that could apply: (1) Was the recording in a private space?(2) Does the recording involve the investigation of conduct that constitutes a misdemeanor punishable by fine only that did not result in an arrest? Section 1701.661(f)

Was the recording in a private space? Yes . – Do you have written authorization from subjects of the recording to release?No. – Recording is confidential under (f). Yes. – Proceed to second aspect of (f). No. – Proceed to second aspect of (f). Section 1701.661(f): Private Space (Slide 1 of 10)

Requestor: NBC News Request for: Information pertaining to an assault that occurred outside of the Richard Rodgers Theatre around 9 p.m. on December 3, 2017. Section 1701.661(f): Private Space (Slide 2 of 10)

Requestor: NBC News Request for: Information pertaining to an assault that occurred outside of the Richard Rodgers Theatre around 9 p.m. on December 3, 2017. This is not a proper body camera request – no subjects named Section 1701.661(f): Private Space (Slide 3 of 10)

Requestor: NBC News Request for: Information pertaining to an assault outside Richard Rodgers Theatre around 9 p.m. on December 3, 2017, involving Aaron Burr. Body camera recording shows: Officer George King interviewing Eliza inside of her house. Private space recording with no written consent from subject of recording (Eliza). Recording is confidential under section 1701.661(f) and must be withheld under section 552.101 of the Government Code. Section 1701.661(f): Private Space (Slide 5 of 10)

Requestor: Eliza Hamilton Request for: Information pertaining to an assault that I witnessed outside my home at 226 West 42nd Street around 9 p.m. on December 3, 2017. Body camera recording shows: Officer George King interviewing the requestor in front of his police vehicle parked on the street in front of the requestor’s home. This is a proper body camera request. Although the requestor did not name a subject of the body camera recording in her request, she is the subject of the recording. Section 1701.661(f): Private Space (Slide 7 of 10)

Requestor: Eliza Hamilton Request for: Information pertaining to an assault that I witnessed outside my home at 226 West 42nd Street around 9 p.m. on December 3, 2017. Body camera recording shows: Officer George King interviewing the requestor in front of his police vehicle parked on the street in front of the requestor’s home. Public space recording – proceed to second aspect of section 1701.661(f). Section 1701.661(f): Private Space (Slide 8 of 10)

Requestor: Eliza Hamilton Request for: Information pertaining to an assault that I witnessed outside my home at 226 West 42nd Street around 9 p.m. on December 3, 2017. Body camera shows: Officer George King interviewing the requestor inside the requestor’s home. Private space recording with implied authorization of the requestor, who is the subject of the recording. Proceed to second aspect of section 1701.661(f). Section 1701.661(f): Private Space (Slide 10 of 10)

Does the recording involve a misdemeanor punishable by fine only that did not result in an arrest? Yes . – Do you have written authorization to release the recording from subject(s) of the recording? No. – Recording is confidential under (f). Yes. – Proceed to section 1701.661(e). No. – Proceed to section 1701.661(e). Note : Tell us if the recording pertains to an investigation of a misdemeanor punishable by fine only and did not result in arrest. Section 1701.661(f): Misdemeanor

Section 1701.661(e) of the Occupations Code If it is a proper body camera request (1701.661(a)):That relates to a law enforcement purpose (1701.661(h)); That could be used as evidence in a criminal prosecution (1701.661(c)-(d)) ; That does not involve a pending investigation related to the use of deadly force by a peace officer or an administrative or criminal investigation of an officer (1701.660(a)) ; AND Either: Neither aspect of 1701.661(f) applies OR You have written authorization to release the recording from the subject(s) of the recording if either aspect of 1701.661(f) applies: You may release the recording with all confidential information redacted OR you may raise other exceptions to disclosure. Section 1701.661(e)

Requestor Name: Alexander Hamilton Request for: All information pertaining to case number 2018-5659 in which I was arrested for DWI around 7 p.m. at the intersection of Congress Avenue and 9th Street. Overview Hypothetical (Slide 1 of 10)

The City of Broadway’s Police Department receives this request and determines the department has an offense report, a dash camera recording, and a body camera recording pertaining to this incident. The department asks for a ruling to withhold information under section 552.108(a)(1). The department also argues the body camera recording has not been requested properly under section 1701.661(a). Overview Hypothetical (Slide 2 of 10)

Did the requestor make a proper request for the body camera recording? Overview Hypothetical (Slide 3 of 10)

Did the requestor make a proper request for the body camera recording? Not a proper body camera request – no date of recording provided. Overview Hypothetical (Slide 4 of 10)

Did the requestor make a proper request for the body camera recording? Not a proper body camera request – no date of recording provided. Does the requestor have a right of access to the body camera recording under article 2.1396 of the Code of Criminal Procedure? Overview Hypothetical (Slide 5 of 10)

May the department withhold the remaining information under section 552.108(a)(1)? Overview Hypothetical (Slide 7 of 10)

May the department withhold the remaining information under section 552.108(a)(1)? Generally, yes, if the department explains release of the information would interfere with the department’s ongoing criminal investigation. The dash camera recording consists of footage of Hamilton’s stop, field sobriety tests, and his arrest. Overview Hypothetical (Slide 9 of 10)

Questions OAG Open Government Hotline (877) OPEN-TEXOAG Website https://www.texasattorneygeneral.gov/open/index.shtml