Keeping out of the public eye
IOWA CITY, Iowa (AP) — Police departments routinely withhold video of officer-involved shootings and other incidents from the public by using a broad exemption to state-open records laws, an investigation by The Associated Press has found.
The AP tested the public's ability to access police video for Sunshine Week, an annual celebration of open government, by filing open records requests related to roughly 20 recent incidents in a dozen states.
The requests were met with a series of denials and failed to unearth video of a single incident that had not already been released publicly. A few remain pending and some videos might be released in coming months or years once criminal and disciplinary investigations are concluded. But by then, the public interest in knowing what happened may have waned significantly.
In rejecting or delaying the requests, most law enforcement agencies and prosecutors cited exemptions that allow them to keep records of pending investigations secret. One county claimed the exemption would allow it to keep the video of a motorist's fatal shooting secret forever — even though the investigation has concluded and cleared the deputy involved.
In North Dakota last year, authorities withheld video for months of 26-year-old Daniel Fuller being hit by an officer's pistol during a struggle. An autopsy showed that he died from a gunshot to the back of the head.
They released it only after a prosecutor announced in November that the officer did not intend to fire his gun and would not face criminal charges.
"It took forever for them to release the video because they kept saying it was an ongoing investigation," said Fuller's older sister, Allyson Bartlett. "I don't think they wanted pressure from the community."
To be sure, some police departments voluntarily release videos of high-profile incidents, sometimes within days or weeks. They also are forced to share them during civil rights lawsuits or air them when suspects face trial.
But critics say the investigations exemption is often misapplied to keep from public view video that might shine an unfavorable light on the actions of officers. It's intended to protect sensitive details that might tip off suspects that they are under scrutiny or alert them to what evidence police have obtained. But when officers shoot or otherwise use force on suspects, they know their actions are the focus of the investigation and often have access to the videos of the incidents.
"It is for that reason that the investigative records exemption literally makes no sense and should have no place when it comes to police body camera footage," said Chad Marlow, an expert on laws governing body cameras at the American Civil Liberties Union. "We didn't know that would end up being the get-out-of-FOIA free card for police departments, but it has certainly turned into that."
Authorities say they have good reason for withholding video during investigations, such as preventing the memories of witnesses from being tainted or sparking protests with an out-of-context snippet of a deadly encounter. But the problem, said former federal prosecutor Val Van Brocklin, is that "there is no national standard of when and how this stuff gets released."
In West Virginia, a prosecutor withheld a video that led to the firing of two state troopers for allegedly beating a 16-year-old suspect. In Georgia, a county sheriff's office refused to release video of a 22-year-old man who allegedly shot himself to death while struggling with police, an explanation that has been questioned and sparked protests.
In Atlanta, where officers were recently criticized in an audit for failing to use their body cameras as intended, the department would not release video of an officer-involved shooting that happened last summer, saying the officer could potentially still face disciplinary action.
The department in Sugar Land, Texas, which recently released dramatic video of officers rescuing a woman from a lake, refused to divulge footage of a 2016 struggle in which a man alleges he was beaten and severely injured by officers.
In North Liberty, Iowa, a city lawyer responded to a request for video of a traffic stop by calling it a confidential investigative record — then demanded the AP not publish footage the news organization had already obtained of the incident.
The city had fired a patrol supervisor for mishandling the stop, claiming he violated the rights of suspects in a road rage incident, failed to draw his weapon and made other procedural errors. The supervisor has filed a lawsuit contesting his firing, and his attorney provided the AP with footage that he says shows his client acted appropriately. The city released a redacted version of the video only after AP declined the city's request.
California is seen as a bright spot for transparency.
Its state capital, Sacramento, has been roiled by protests over police shootings of unarmed black men, most recently after the district attorney and state attorney general declined to bring charges against two officers in the fatal shooting of Stephon Clark.
Police video of that shooting helped fuel the protests, and yet the department is among the most transparent in releasing officer videos. A city policy that predates the Clark shooting requires the police department to release footage within 30 days of a major incident or justify why it won't.
"That's a big priority for us, to build that trust with our community, and we feel releasing body-worn camera footage is one way," said a department spokesman, Marcus Basquez.