A state trooper watches the crowd at the “Re-open Arizona” protest at the Capitol on April 20, 2020. Photo by Laura Gómez | Arizona Mirror
Tucked into a budget bill on criminal justice is a provision that would allow the Arizona Department of Public Safety to outright deny releasing any video records the agency possesses and to heavily edit any videos it chooses to make public.
A previous version of the bill by Republican lawmakers would have given DPS money to equip all state troopers with body-worn cameras, coupled with restrictions on how the footage for those cameras would be released.
But now the language applies to all video footage obtained by the department, not just video from body-worn cameras.
“It turns the Arizona public records law on its head and acts as an invitation for DPS to conceal video from the public,” media law attorney David Bodney said. “This just drives a locomotive through the public records law.”
Bodney’s client list includes many media organizations in Arizona, including the Arizona Mirror, and he is one of the state’s most prominent First Amendment and public records attorneys.
The language restricting access to the video footage is similar to a bill proposed by Rep. John Kavanagh, R-Fountain Hills, that failed earlier this year. That bill would have mandated redactions on any body worn camera footage released by all police departments. The provisions in the budget bill apply only to DPS, but are much more restrictive — and serve to carve out an exemption from existing public records law.
“We do not comment on pending legislation,” DPS spokesperson Sgt. Jimmy Chavez said when asked if the department helped in crafting the legislation or if it was consulted. “This has not yet been signed by Governor Ducey.”
The language of the bill says that DPS cannot release any video unless all people in the video consent to its release or if DPS “determines that there is an important public purpose” to releasing it. Those purposes include the footage capturing a crime being committed, a police officer using physical force or an allegation of misconduct against an officer.
This version of the bill adds that any footage taken in a “public place” does not require the department to redact information. But DPS would have total discretion to withhold any video from public release, even if all of the criteria are met.
And any video that is released must be edited to obscure the identity of people in the video, including crime victims.
Further, anyone requesting release of a video has to know the exact date, time and location of the recording, as well as the people involved. Requests that don’t include all of those things must be denied, the proposed law says.
“It has become needlessly difficult to secure access to public records in a video format,” Bodney said of existing public record law. “Law enforcement agencies often delay and deny records requests without complying faithfully with the public records law.”
Arizona police agencies already have a patchwork of policies in place for how they deal with video records, as previously reported by the Mirror.
For example, the Tempe Police Department has a policy of applying a “medium blur” to all footage released unless the requester specifically asks for the blur to be removed.
A spokesman said the policy is designed to allow the agency to more quickly release records, as there is one employee who redacts videos in response to records requests and the agency does not have automatic redaction software.
Although Tempe Police said its policy aims to speed up the release of videos that are requested, that wasn’t the Mirror’s experience. An initial request took the agency 61 days to fill. A subsequent request for the same video without the “medium blur” and instead with “object tracking” redactions was filled in another 14 days.
Policies vary by agency but are generally similar, though there are a few interesting outliers.
For example, the Scottsdale Police Department’s policy states that the department’s public information officers may “review, download, and disseminate videos specifically related to public information requests without prior approval.” Other videos will be released in accordance with the department’s normal public records policy.
Scottsdale Police also applies “object tracking” to all its videos by default, a spokesman told the Mirror. Some agencies, such as the Tucson Police Department, already apply a “heavy blur” to victims of crimes.
“(Restricting access to videos) does not belong in a budget reconciliation bill,” Bodney said. “It deserves to be debated and the public should have an opportunity to express concerns about the incentives this legislation creates for DPS to conceal these public records.”
The bill also adds provisions to allow for DPS to create additional charges to those who file public records requests for video. While state law bars governmental bodies from charging for the time it takes to find or redact records, the budget proposal would explicitly allow DPS to charge the public for the salaries of for searching for and redacting any footage requested.
The added provisions allows for DPS to use the cost of reviewing and copying the footage, the compensation of a public records employee and “any other relevant information” when assessing the fee.
“If it passes, we need to return to the legislature and get it repealed next session,” Bodney said. “The underlying issues are far too important for legislation like this to stay on the books.”
The bill’s sponsor, Rep. Regina Cobb, R-Kingman, did not respond to a request for comment.
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