GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
S D
SENATE BILL DRS45213-MS-82 (03/06)
Short Title: Amend LEO Recordings: Decision Authority. |
(Local) |
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Sponsors: |
Senator Lowe (Primary Sponsor). |
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Referred to: |
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A BILL TO BE ENTITLED
AN ACT to provide the city of winston‑salem with the flexibility to provide law enforcement agency recordings to the citizens' police review board and to amend the court proceedings for law enforcement RECORDINGS for the city of winston‑salem.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 132‑1.4A reads as rewritten:
"§ 132‑1.4A. Law enforcement agency recordings.
(a) Definitions. – The following definitions apply in this section:
(1) Body‑worn camera. – An operational video or digital camera or other electronic device, including a microphone or other mechanism for allowing audio capture, affixed to the uniform or person of law enforcement agency personnel and positioned in a way that allows the camera or device to capture interactions the law enforcement agency personnel has with others.
(2) Custodial law enforcement agency. – The law enforcement agency that owns or leases or whose personnel operates the equipment that created the recording at the time the recording was made.
(3) Dashboard camera. – A device or system installed or used in a law enforcement agency vehicle that electronically records images or audio depicting interaction with others by law enforcement agency personnel. This term does not include body‑worn cameras.
(4) Disclose or disclosure. – To make a recording available for viewing or listening to by the person requesting disclosure, at a time and location chosen by the custodial law enforcement agency. This term does not include the release of a recording.
(5) Personal representative. – A parent, court‑appointed guardian, spouse, or attorney of a person whose image or voice is in the recording. If a person whose image or voice is in the recording is deceased, the term also means the personal representative of the estate of the deceased person; the deceased person's surviving spouse, parent, or adult child; the deceased person's attorney; or the parent or guardian of a surviving minor child of the deceased.
(6) Recording. – A visual, audio, or visual and audio recording captured by a body‑worn camera, a dashboard camera, or any other video or audio recording device operated by or on behalf of a law enforcement agency or law enforcement agency personnel when carrying out law enforcement responsibilities. This term does not include any video or audio recordings of interviews regarding agency internal investigations or interviews or interrogations of suspects or witnesses.
(7) Release. – To provide a copy of a recording.
(b) Public Record and
Personnel Record Classification. – Recordings are not public records as
defined by G.S. 132‑1.G.S. 132‑1 and are
subject to disclosure and release within a reasonable time frame, as determined
by the law enforcement agency in possession of the recordings, unless a court
order from a court of competent jurisdiction precluding the disclosure or
release of the recordings has been obtained pursuant to subsection (e) of this
section. Before disclosing or releasing the recordings, the law enforcement
agency in possession of the recordings shall notify, in writing, at least five
calendar days before disclosing or releasing the recordings, the district
attorney, each employee and person whose image is captured in the recordings,
and their personal representatives, if known, provided that the law enforcement
agency in custody of the recordings is able to determine, after exercising
reasonable measures, the identity and location of each person whose image is
captured in the recordings. Three calendar days shall be allowed for mailing.
If upon the expiration of the five‑day notice and the three‑day
mailing period a petition for an order has not been filed, the law enforcement
agency in possession of the recordings may disclose or release the requested
recordings. The return of any written notice, as undeliverable or for any other
reason, shall not create liability for the law enforcement agency or the city
of that agency and shall not preclude the disclosure or release of the recordings
by the law enforcement agency in possession of such. Before any recordings are
disclosed to the Citizens' Police Review Board in open session, the
aforementioned notification process must be adhered to. Recordings are not
personnel records as defined in Part 7 of Chapter 126 of the General Statutes, G.S. 160A‑168,
or G.S. 153A‑98.
(c) Disclosure; General. – Recordings in the custody
of a law enforcement agency shall be disclosed only as provided by this
section. A person requesting disclosure of a recording must make a written
request to the head of the custodial law enforcement agency that states the
date and approximate time of the activity captured in the recording or
otherwise identifies the activity with reasonable particularity sufficient to
identify the recording to which the request refers.
The head of the custodial law
enforcement agency may only disclose a recording to the following:
(1) A person whose image or voice is in the
recording.
(2) A personal representative of an adult
person whose image or voice is in the recording, if the adult person has
consented to the disclosure.
(3) A personal representative of a minor or
of an adult person under lawful guardianship whose image or voice is in the
recording.
(4) A personal representative of a deceased
person whose image or voice is in the recording.
(5) A personal representative of an adult
person who is incapacitated and unable to provide consent to disclosure.
When disclosing the recording,
the law enforcement agency shall disclose only those portions of the recording
that are relevant to the person's request. A person who receives disclosure
pursuant to this subsection shall not record or copy the recording.
(d) Disclosure; Factors for Consideration. – Upon
receipt of the written request for disclosure, as promptly as possible, the
custodial law enforcement agency must either disclose the portion of the
recording relevant to the person's request or notify the requestor of the
custodial law enforcement agency's decision not to disclose the recording to the
requestor.
The custodial law enforcement
agency may consider any of the following factors in determining if a recording
is disclosed:
(1) If the person requesting disclosure of
the recording is a person authorized to receive disclosure pursuant to
subsection (c) of this section.
(2) If the recording contains information
that is otherwise confidential or exempt from disclosure or release under State
or federal law.
(3) If disclosure would reveal information
regarding a person that is of a highly sensitive personal nature.
(4) If disclosure may harm the reputation or
jeopardize the safety of a person.
(5) If disclosure would create a serious
threat to the fair, impartial, and orderly administration of justice.
(6) If confidentiality is necessary to
protect either an active or inactive internal or criminal investigation or
potential internal or criminal investigation.
(e) Appeal of Disclosure Denial. – If a law
enforcement agency denies disclosure pursuant to subsection (d) of this
section, or has failed to provide disclosure more than three business days
after the request for disclosure, the person seeking disclosure may apply to
the superior court in any county where any portion of the recording was made
for a review of the denial of disclosure. The court may conduct an in‑camera
review of the recording. The court may order the disclosure of the recording
only if the court finds that the law enforcement agency abused its discretion
in denying the request for disclosure. The court may only order disclosure of
those portions of the recording that are relevant to the person's request. A
person who receives disclosure pursuant to this subsection shall not record or copy
the recording. An order issued pursuant to this subsection may not order the
release of the recording.
In any proceeding pursuant to
this subsection, the following persons shall be notified and those persons, or
their designated representative, shall be given an opportunity to be heard at
any proceeding: (i) the head of the custodial law enforcement agency, (ii) any
law enforcement agency personnel whose image or voice is in the recording and
the head of that person's employing law enforcement agency, and (iii) the
District Attorney. Actions brought pursuant to this subsection shall be set
down for hearing as soon as practicable, and subsequent proceedings in such
actions shall be accorded priority by the trial and appellate courts.
(f) Release of Recordings to Certain Persons;
Expedited Process. – Notwithstanding the provisions of subsection (g) of this
section, a person authorized to receive disclosure pursuant to subsection (c)
of this section, or the custodial law enforcement agency, may petition the
superior court in any county where any portion of the recording was made for an
order releasing the recording to a person authorized to receive disclosure.
There shall be no fee for filing the petition which shall be filed on a form
approved by the Administrative Office of the Courts and shall state the date
and approximate time of the activity captured in the recording, or otherwise
identify the activity with reasonable particularity sufficient to identify the
recording. If the petitioner is a person authorized to receive disclosure,
notice and an opportunity to be heard shall be given to the head of the
custodial law enforcement agency. Petitions filed pursuant to this subsection
shall be set down for hearing as soon as practicable and shall be accorded
priority by the court.
The court shall first determine
if the person to whom release of the recording is requested is a person
authorized to receive disclosure pursuant to subsection (c) of this section. In
making this determination, the court may conduct an in‑camera review of
the recording and may, in its discretion, allow the petitioner to be present to
assist in identifying the image or voice in the recording that authorizes
disclosure to the person to whom release is requested. If the court determines
that the person is not authorized to receive disclosure pursuant to subsection
(c) of this section, there shall be no right of appeal and the petitioner may
file an action for release pursuant to subsection (g) of this section.
If the court determines that the
person to whom release of the recording is requested is a person authorized to
receive disclosure pursuant to subsection (c) of this section, the court shall
consider the standards set out in subsection (g) of this section and any other
standards the court deems relevant in determining whether to order the release
of all or a portion of the recording. The court may conduct an in‑camera
review of the recording. The court shall release only those portions of the
recording that are relevant to the person's request and may place any
conditions or restrictions on the release of the recording that the court, in
its discretion, deems appropriate.\
(g) Release of Recordings; General; Court Order
Required. – Recordings in the custody of a law enforcement agency shall only be
released pursuant to court order. Any custodial law enforcement agency or any
person requesting release of a recording may file an action in the superior
court in any county where any portion of the recording was made for an order
releasing the recording. The request for release must state the date and
approximate time of the activity captured in the recording, or otherwise
identify the activity with reasonable particularity sufficient to identify the
recording to which the action refers. The court may conduct an in‑camera
review of the recording. In determining whether to order the release of all or
a portion of the recording, in addition to any other standards the court deems
relevant, the court shall consider the applicability of all of the following
standards:
(1) Release is necessary to advance a
compelling public interest.
(2) The recording contains information that
is otherwise confidential or exempt from disclosure or release under State or
federal law.
(3) The person requesting release is seeking
to obtain evidence to determine legal issues in a current or potential court
proceeding.
(4) Release would reveal information
regarding a person that is of a highly sensitive personal nature.
(5) Release may harm the reputation or
jeopardize the safety of a person.
(6) Release would create a serious threat to
the fair, impartial, and orderly administration of justice.
(7) Confidentiality is necessary to protect
either an active or inactive internal or criminal investigation or potential internal
or criminal investigation.
(8) There is good cause shown to release all
portions of a recording.
The court shall release only
those portions of the recording that are relevant to the person's request, and
may place any conditions or restrictions on the release of the recording that
the court, in its discretion, deems appropriate.
In any proceeding pursuant to
this subsection, the following persons shall be notified and those persons, or
their designated representative, shall be given an opportunity to be heard at
any proceeding: (i) the head of the custodial law enforcement agency, (ii) any
law enforcement agency personnel whose image or voice is in the recording and
the head of that person's employing law enforcement agency, and (iii) the
District Attorney. Actions brought pursuant to this subsection shall be set
down for hearing as soon as practicable, and subsequent proceedings in such
actions shall be accorded priority by the trial and appellate courts.
(c) Court Order Prohibiting Disclosure or Release of Recordings. – Any person, including the district attorney, or the law enforcement agency in possession of the recordings or the city of such agency, may file an action or petition to the Forsyth County Superior Court for an order prohibiting the disclosure or release of the recordings. If such action or petition is filed, the petitioner must serve a copy of the action or petition upon the city of the law enforcement agency in custody of the recordings in accordance with G.S. 1A‑1, Rule 4, unless the petitioner is said law enforcement agency. If the petitioner is not the district attorney, a copy of the action or petition filed must be served upon the district attorney in accordance with G.S. 1A‑1, Rule 4. Upon receipt of the action or petition filed pursuant to this subsection, the law enforcement agency in possession of the recordings and the city shall refrain from disclosing or releasing the recordings until the court has rendered a decision. Any disclosure or release of the recordings must adhere to said decision. In determining whether to enter such an order, the court shall consider the following:
(1) Disclosure or release may jeopardize public safety.
(2) The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.
(3) Disclosure or release would reveal information regarding a person that is of a highly sensitive personal nature.
(4) Disclosure or release may harm the reputation or jeopardize the safety of a person.
(5) Disclosure or release would create a serious threat to the fair, impartial, and orderly administration of justice.
(6) Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or a potential internal or criminal investigation.
(7) There is good cause shown to prohibit the disclosure or release of all or portions of a recording.
The court may conduct an in camera review of the recordings. The court may preclude disclosure or release of all or portions of the recordings until such time the basis for prohibiting the disclosure or release of the recordings ceases to exist. Actions or petitions brought pursuant to this subsection shall be set down for hearing as soon as practicable and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.
(h)(d) Release of
Recordings; Law Enforcement Purposes. – Notwithstanding the requirements of
subsections (c), (f), and (g) of this section, a custodial law enforcement
agency shall disclose or release a recording to a district attorney (i) for
review of potential criminal charges, (ii) in order to comply with discovery
requirements in a criminal prosecution, (iii) for use in criminal proceedings
in district court, or (iv) any other law enforcement purpose, and may disclose
or release a recording for any of the following purposes:
(1) For law enforcement training purposes.
(2) Within the custodial law enforcement agency for any administrative, training, or law enforcement purpose.
(3) To another law enforcement agency for law enforcement purposes.
(i)(e) Retention of
Recordings. – Any recording subject to the provisions of this section shall be
retained for at least the period of time required by the applicable records
retention and disposition schedule developed by the Department of Natural and
Cultural Resources, Division of Archives and Records.
(j)(f) Agency Policy
Required. – Each law enforcement agency that uses body‑worn cameras or
dashboard cameras shall adopt a policy applicable to the use of those cameras.
(k)(g) No civil
liability shall arise from compliance with the provisions of this section,
provided that the acts or omissions are made in good faith and do not
constitute gross negligence, willful or wanton misconduct, or intentional
wrongdoing.
(l)(h) Fee for Copies.
– A law enforcement agency may charge a fee to offset the cost incurred by it
to make a copy of a recording for release. The fee shall not exceed the actual
cost of making the copy.
(m)(i) Attorneys' Fees.
– The court may not award attorneys' fees to any party in any action brought
pursuant to this section."
SECTION 2. This act shall apply to the City of Winston‑Salem only.
SECTION 3. This act is effective when it becomes law.