Law enforcement body-worn and dash camera recordings (“Police Recordings”) have been the subject of nationwide controversies. Most recently, a North Carolina court denied the release of Police Recordings in a high-profile case in Elizabeth City. This article provides a general understanding of the law governing the release and disclosure of Police Recordings.
There are five important concepts to appreciate.
First, Police Recordings are not public record. See N.C. Gen. Stat. § 132-1.4A(b). Therefore, Police Recordings are not subject to inspection or examination through public records law. See N.C. Gen. Stat. § 132-6(a).
Second, a distinction exists between “release” and “disclosure” of Police Recordings. The “release” of Police Recordings is defined as “[t]o provide a copy.” See N.C. Gen. Stat. § 132-1.4A(a)(7). The “disclosure” of Police Recordings is defined as “[t]o 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.” See N.C. Gen. Stat. § 132-1.4A(a)(4).
Third, a narrow group of individuals may seek “disclosure” of Police Recordings directly from law enforcement. See N.C. Gen. Stat. § 132-1.4A(c) (allowing disclosure only to, among others, a person whose image or voice is in the recording). Law enforcement is to consider six factors in deciding whether to disclose the Police Recordings. See N.C. Gen. Stat. § 132-1.4A(d) (providing, among others, whether “confidentiality is necessary to protect either an active or inactive internal or criminal investigation . . . .”). If disclosure is granted, an individual may not record or copy the Police Recordings. See N.C. Gen. Stat. § 132-1.4A(c). If law enforcement fails to respond or refuses to disclose the Police Recordings within three business days, an individual may appeal the same to a Superior Court. See N.C. Gen. Stat. § 132-1.4A(e).
Fourth, Police Recordings are “released” only through court order. See N.C. Gen. Stat. § 132-1.4A(f) and (g). Therefore, an individual must file a petition with the Superior Court requesting the release. Id.
If an individual is authorized to receive “disclosure” as stated earlier, then he or she may request “release” through subsection (f) of the statute, requiring notice only to the head of the custodial law enforcement agency. See N.C. Gen. Stat. § 132-1.4A(f). Otherwise, any individual may request “release” through subsection (g) of the statute, requiring notice to (1) the head of the custodial law enforcement agency, (2) 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 (3) the District Attorney. See N.C. Gen. Stat. § 132-1.4A(g).
The Court is to consider eight factors in deciding whether to “release” the Police Recordings to the individual. See N.C. Gen. Stat. § 132-1.4A(g) (providing, among others, whether release is necessary to advance a compelling public interest or to obtain evidence to determine legal issues in a current or potential court proceeding).
Fifth, members of the General Assembly are proposing to flip the burdens governing Police Recordings. On April 27, 2021, House Bill 698 was filed which, if passed, would require law enforcement to release Police Recordings within forty-eight hours after request. Law enforcement would have an opportunity to seek a court order to restrict the release.
This blog is designed to comment upon basic legal issues and is not an exhaustive overview of the law. It is intended for educational purposes only and constitutes neither legal advice nor an attorney-client relationship. Contact the skilled criminal law, family law, and civil litigation attorneys at Davis & Davis, Attorneys at Law, P.C., including Board-Certified Specialists in Federal and State Criminal Law and Family Law, to schedule a consultation today.