In theory, Durham police officers wearing body cameras is good for everybody. For citizens distrustful of the Durham Police Department—a not-unreasonable point of view, given that Chief Jose Lopez was just run out of town due, in part, to accusations of racial profiling in the department—body cams offer a degree of protection against police misconduct. For officers who fear false accusations, the body cams are there to back up their version of events. Transparency equals truth. Win-win.

But what if the language of the actual body-cam policy undermines that transparency?

Last spring, the DPD held several community forums soliciting input from residents about what a good body-camera policy might look like. A few weeks ago, the DPD unveiled its draft proposal outlining that policy. Not everyone is happy about it.

“The way the policy looks right now, there’s no process by which people can access these videos through public-records requests—not even the individuals involved in the incidents,” says Susanna Birdsong, policy counsel for the N.C. ACLU. “The whole reason body cams are such an important tool is because they offer transparency and accountability for police. But if the public can’t access the recordings, then what’s the point?”

Birdsong is referring to the following excerpt from the DPD’s draft policy: “Body camera recordings constitute records of a criminal investigation and/or personnel records and are not public records.” It then cites two public records statutes—one about criminal investigations, the other on personnel records—neither of which mentions anything about body cameras.

The “personnel records” justification is borrowed from the Greensboro Police Department. Personnel records laws are designed to protect the privacy of government employees. Greensboro was the first large city in North Carolina to implement a body-camera policy. In doing so, it declared body-cam footage part of an officer’s personnel record.

The wobbly hook the GPD hung this hat on was a federal court case in Fayetteville where a judge stated that dash-cam footage might be considered part of an officer’s personnel record.

“But that is not a binding ruling or a clearly settled question of law,” says Jonathan Jones, director of the N.C. Open Government Coalition (and a former Durham County assistant district attorney). “And it was about dash cams, not body cams. No judge in North Carolina has addressed whether body cams are a personnel record. Nor has the General Assembly. And beyond that, the reason police departments are using body cams is not for employee evaluation and review. They’re intended to build trust in the community and investigate crimes. So it’s a bizarre justification.”

The “criminal investigation” rationale is also counterintuitive. Few would argue that body-cam footage related to an ongoing investigation should be a matter of public record. But the DPD classifying all body-cam footage as being part of a criminal investigation effectively means that sole discretion is given to the police chief to determine what gets released to the public.

One does not need to travel very far back in recent history to find an incident that illuminates the problematic nature of such an arrangement. The Chicago Police Department received and rejected 15 Freedom of Information Act requests for the video of the shooting of Laquan McDonald in the year after the Chicago teenager’s death. Only after an independent journalist sued the police department and a judge ordered the video released did the world find out that a Chicago police officer appeared to have murdered McDonald in cold blood.

The way Durham’s draft proposal is currently written, the DPD would not be required to disclose such a video.

Jones argues that the “criminal investigation” statute the DPD cites is not relevant. “There is one case in Randolph County—a police officer shot a UNC student on Highway 85—where [a judge] ruled that a dash-cam video was part of a criminal investigation and not subject to public records requests,” Jones says. “But that was a non-binding, non-precedential opinion. The only place that ruling has the authority of law is Randolph County.

“In other words,” Jones continues, “I can’t state unequivocally to you that North Carolina body-cam footage is public record. At the same time, [the DPD] can’t say unequivocally that it’s not. So I think a policy like this opens Durham up to a legal challenge. Because at some point there’s going to be an instance where there’s something caught on camera that the public demands to see. And somebody will sue. At some point that is going to happen.”

One logical way to settle matters would be for the Legislature to enact clear body-camera laws that satisfy the general public’s twin desires for personal privacy (no publicly accessible footage of an officer accidentally entering the home of a naked woman) and police accountability (no more law enforcement stonewalling the release of Laquan McDonald-like videos).

Rep. John Faircloth, R-Guilford, a former police chief in High Point who sponsored a body-cam bill in the last session, says the issue is a “delicate dance.” His bill passed in the House but stalled in the Senate. If passed, it would have essentially killed the argument that body-cam footage should be considered part of an officer’s personnel records. But it also would have given police departments discretion over whether to release recordings to the public.

“That bill is really more of a first step in what I think will be a long process,” Faircloth says. “I was hearing from police departments who believed they were hamstrung by the ‘personnel’ nature of the current state laws. The bill was designed to give them the ability to release limited information—film, camera records—in order to keep public order in their cities.”

Faircloth says he’s not in favor of giving police departments carte blanche to decide what gets released.

“I think, first of all, we ought to go as far as we can to making information available to the public, so long as it doesn’t get in the way of critical evidentiary information that would cause us to lower the quality of investigations,” Faircloth says. “And past that, I think there’s a place here for judicial participation. It’d be similar to how if the police want to search a home, they have to get permission from an uninvolved party—a judge. So if a newspaper wants to view body-camera footage that hasn’t been released by the police, they can take their request straight to a judge.

“It’s also possible,” Faircloth adds, “that there’s another way of accomplishing this, but we won’t know until we all get together in several meetings across the state and come up with the best way to do it.”

That may take a while. Until then, the DPD’s body-cam policy will be the rule of law here.

It’s not yet set in stone, however: The city is taking feedback on the proposal through Jan. 14. After that, says City Manager Tom Bonfield, there will be briefings in which council members can offer their thoughts. Bonfield will also be making his own recommendations, one of which is that the City Council be a third-party decider of what body-cam footage is in the public interest.

“I agree that it’s not appropriate for the police department to have absolute power there,” he says.

Councilman Charlie Reece, who was active in police-reform efforts prior to his election last year, says he also has some issues with the policy.

“I have a number of concerns in areas where the policy falls short of the kind of transparency that our community will require here in Durham,” Reece told the INDY in an email. “… The subject of a video recording captured by a police-worn body camera should have the right to view that video recording, and in certain circumstances, to have a copy of that footage provided to them. As presently written, the draft general order would provide the Chief of Police (or her designee) with unfettered discretion to approve or reject a request by the subject of such a video to receive a copy of such footage, and I would not support such unfettered discretion.”

Jones argues that the police have nothing to fear from body cams—and if the policy is properly constructed, the tech might actually improve relations between cops and citizens.

“My experience as a prosecutor in Durham was that it was very common for people to say they were mistreated by police, and then you go to the dash-cam video and discover the officer was 100 percent professional,” Jones says. “And I think these body-cam videos will show that most of the time. But particularly given the concern about the police department here in recent years, I’m disappointed they’re not viewing this as an opportunity to rebuild trust in the community.”

This article appeared in print with the headline “No watching the watchers”