By Nelda Holder –
In the wake of video footage that surfaced regarding the physical interaction by APD with Johnnie Jermaine Rush, it is important to review North Carolina law regarding law enforcement recordings.
In 2016, the NC General Assembly passed HB 972, which became state law on July 11 of that year. The new law provides that recordings made by law enforcement in this state are not public records and establishes a procedure for contesting a refusal to disclose a recording or provide a copy of same.
A person requesting disclosure of a recording must make that request in writing to the head of the custodial law enforcement agency, and the recording may only be disclosed to the following:
- A person whose image or voice is in the recording;
- A personal representative of an adult person whose image or voice is in the recording (if the adult person has consented to disclosure);
- A personal representative of a minor or of an adult person under lawful guardianship whose image or voice is in the recording;
- A personal representative of a deceased person whose image or voice is in the recording;
- A personal representative of an adult person who is incapacitated and unable to provide consent to disclosure.
When disclosing the recording, law enforcement shall disclose only those portions of the recording that are relevant to the person’s request.
Upon receipt of the written request for disclosure, as promptly as possible the law enforcement agency must either disclose the relevant portion or notify the requestor of the decision not to disclosure. These conditions help determine disclosure:
- If the person requesting is authorized to receive disclosure
- If the recording contains information otherwise confidential or exempt from disclosure/release under state or federal law;
- Disclosure would reveal information of a highly sensitive personal nature;
- Disclosure may harm the reputation or jeopardize safety of a person;
- Disclosure would create a serious threat to the fair, impartial, and orderly administration of justice;
- If confidentiality is necessary to protect either an active or inactive internal or criminal investigation (or potential investigation).
Expedited release of recordings may be available by petitioning superior court in the county where any portion of the recording was made, asking for release to a person authorized to receive disclosure. The court may conduct an in-camera review and may allow the petitioner to be present to assist in identifying the image or voice in the recording that authorizes disclosure. If determined that the person is authorized to receive disclosure, the court shall release only those portions of the recording relevant to the person’s request and may place any conditions it deems appropriate.
General release by court order shall have considered the following:
- Release is necessary to advance a compelling public interest
- The recording contains information otherwise confidential or exempt from release under state or federal law;
- The person requesting release is seeking evidence to determine legal issues;
- Release would reveal information of highly sensitive personal nature;
- Release may harm the reputation or jeopardize the safety of a person;
- Release would create a serious threat to fair, impartial, orderly administration of justice;
- Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential investigation;
- There is good cause shown to release all portions of a recording.
Release of recordings for law enforcement purposes may take place for any of the following purposes:
- Use of district attorney, review of potential criminal charges, complying with discovery;
- Law enforcement training;
- Administrative, training, or law enforcement purpose within the custodial agency;
- To provide another law enforcement agency with enforcement training.