Police departments cannot claim that generating an audit report for access to body-worn camera footage requires creating a new document to avoid Freedom of Information Act (FOIA) disclosure, according to a recent ruling from the Freedom of Information Commission (FOIC).
While FOIA requires public agencies to turn over non-exempt public records upon request, it does not require agencies to generate documents that do not already exist or to answer questions about existing documents.
The South Windsor Police Department used this provision to deny a request for audit trail reports for body-worn camera and patrol vehicle videos.
Audit logs, which exist for a variety of technologies used by police, contain information about who accessed catalogued information and when.
In response to a larger request submitted by Kyle LaPorta, South Windsor police denied the part of the request seeking audit logs for information about who accessed four video files on the grounds that the databases the police departments use do not automatically create such a report. Instead, they argued, they would have to manually create that report, which they are not obligated to do under FOIA.
The FOIC found that WatchGuard, the database in which patrol video vehicle recordings are stored, automatically makes audit information available without having to run a separate report, but South Windsor had overlooked this during the initial search process.
They also FOIC found that the Axon Evidence database, which stores body-worn camera video footage, has an option that allows an audit trail to be created by simply clicking a button labeled “Run Audit.”
South Windsor police argued they did not have any obligation under FOIA to click the “Run Audit” button, as doing so would generate a “new record.” The FOIC disagreed with this argument, relying in part on a previous case that found extracting information from a computer database requires formatting information for disclosure, not the creation of a new document.
“It is found that despite being referred to as a “report,” the Axon Evidence audit trail is automatically generated from existing records once the respondents query the Axon Evidence system, and does not require the creation of a new “record” as the respondents argue.” hearing officer Nicholas A. Smarra wrote in a decision that was adopted by commissioners.
The decision helps clarify how FOIA applies to new technologies that have been widely adopted for use by police departments. Requests for audit logs have also proved important in documenting concerns around the use of automated license plate readers (ALPRs) both in Connecticut and around the country. In Connecticut, reporting from CT Insider based on FOI requests for ALPR camera audit logs showed out-of-state law enforcement authorities accessing collected data for immigration enforcement purposes.
Concern over that reporting has generated several bills aimed at curbing how ALPR data can be accessed. Those bills also include an FOI exemption for ALPR data, but stipulate that audit log information would still be considered a public record. Elsewhere in the country, audit logs have revealed searches of ALPR data based on racial slurs and unconnected to a specific investigation, which many police departments require for proper access to data stored by the cameras.
But how requests involving technologies like body-cam and ALPR records should be handled is not always clear under the language of the FOI statute and decisions from the FOIC, which often predate widespread adoption and use of these technologies. How police departments should be able to charge requesters for the cost of redacting body-worn and dashcam footage has been a recurrent issue in the legislature.
Body-worn and dashcam footage already has a shorter retention period than many categories of records due to file size and storage constraints. Reviewing that footage in response to FOI requests, which have increased drastically in recent years along with standardized use of the cameras, has resulted in complaints from police about time and resources spent on redacting information that is exempt from disclosure, especially as FOI’s law enforcement exemption is one of the most complex in the law.
The current FOI statute prohibits public agencies from passing on costs associated with redacting documents to requesters. Recent legislative efforts have sought to allow police to charge for the cost of redaction but have to date not been enacted into law.
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