AG’s office: No consent needed for body cameras

The cameras that will soon be worn by all Spokane police officers on patrol may continue rolling without consent in most cases, the Washington attorney general’s office announced Monday.

Most interactions between officers and citizens are public and exempt from the state’s stringent privacy laws, Attorney General Bob Ferguson and members of his team told reporters Monday. They believe that finding will prompt many jurisdictions to adjust their policies.

The formal opinion was issued at the request of Sen. Andy Billig, D-Spokane. The opinion comes as the Spokane Police Department continues testing body cameras on 17 officers, begun earlier this year.

Billig said his request yielded what he was hoping for, which was more guidance on what current case law says about body cameras and privacy. But, he said, the opinion is just an outline for further rule-making by legislators and law enforcement.

“These are the outside lines,” Billig said. “The legislative bodies need to come in and color inside the lines.”

Spokane police Chief Frank Straub has already announced changes to the department’s policy regarding body cameras following the pilot program’s launch in September. Originally, Straub said officers would stop recording in private homes if asked to do so by the owner. But last month, Straub said he was telling officers to record all contact with the public.

In a written statement, Straub said his office’s policies were consistent with state law.

“I believe our draft body-worn camera policy draws on the best practices of the policing profession, extensive dialogue with the community we serve, and legal opinions on both the state and national level,” Straub said in the statement.

In its formal opinion, which Ferguson said is not legally binding but will receive “great weight” from Washington judges, the attorney general’s office affirmed the right of police to record conversations in homes even without consent of the people recorded.

“Of course, the officer must be legally in the home in the first place to legally record,” Ferguson clarified Monday.

The attorney general’s office based its decision on a Washington Supreme Court case involving the taped confession of a man later convicted of child rape. While the court ruled in February that a phone conversation in the kitchen of William J. Kipp’s home was private, and the tape should not have been heard at trial, the court did not conclude that all conversations taking place in a home were inherently private. If other people are present, the expectation of privacy diminishes despite the location, the courts have said. In Kipp’s case, he was talking to his brother-in-law, the father of the victims.

The attorney general’s opinion says video recorded after an officer announces his or her presence in the home likely would not be protected by privacy laws. But if the officer has not made his presence known, conversations recorded between two or more other people might be protected from admission in the courts or release through a public records request, Ferguson said.

Though police may continue filming, a person recorded by an officer’s body camera may also choose to stop talking and invoke their right to privacy, Ferguson said.

Rick Eichstaedt, executive director of the Center for Justice, said his group was pleased the attorney general had provided guidance on the privacy issues.

“It’s kind of a tricky balance,” Eichstaedt said. “We like people’s privacy, but we also like transparency in law enforcement.”

The opinion did not address public records disclosure of video recorded by body cameras. Several police departments in Washington have received blanket requests for all body camera video from an anonymous Seattle man who maintains a YouTube account called Police Video Requests. Spokane police were able to get the man to agree to the release of three videos from each officer with a camera. In Poulsbo, city officials estimate the man’s blanket request will take four years to fill.

Spokane City Councilman Jon Snyder, who heads the city’s public safety commission, said the attorney general’s opinion does not change the tasks of local elected officials.

“I don’t think there’s anything in there that alleviates the need for new legislation,” he said. “There is still work to be done.”

Still, Snyder said he supported the Spokane Police Department’s test with 17 officers.

“I want to let the pilot project run its course,” he said.

One gray area that remains is whether a law enforcement union may contest a department’s body camera policy. The collective bargaining agreement approved by the Spokane Police Guild earlier this year calls for officers, Straub and other city agencies to collaborate on final rules for the cameras’ use.

The attorney general’s opinion said “if the law enforcement agency has a practice in place, the agency should consider whether bargaining would be required before adopting a different or contrary policy regarding body cameras.”

Billig said it is up to legislators now to meld the attorney general’s opinion, local rules regarding camera use and state privacy laws.

“There’s a balance between transparency and accountability and effectiveness that we need with body cameras,” Billig said. “The AG’s opinion helps a lot as we try to strike the right balance. This is only the beginning of the conversation.”