Advanced PIA and Body Cameras in Law Enforcement
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Tamara Smith
Michelle Case
Assistant Attorneys General
Open Records Division
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:
•
Releasing, redacting, and requesting a ruling
•
Additional considerations for Gov’t Code
§
552.108
•
Texas Homeland Security Act provisions
•
Body camera recordings
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Duties Upon Receipt of Proper Request:
•
Promptly release the requested information
•
Request a ruling
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Duties Upon Receipt of Proper Request:
•
Promptly release the requested information
•
Request a ruling
Previous Determinations – Two Types
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Duties Upon Receipt of Proper Request:
•
Promptly release the requested information
•
Request a ruling
Previous Determinations – Two Types
Information Not Protected by Discretionary Exceptions
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Duties Upon Receipt of Proper Request:
•
Promptly release the requested information
•
Request a ruling
Previous Determinations – Two Types
Information Not Protected by Discretionary Exceptions
Redacting Information
•
Previous determination
•
Statutory authority
Ex. Gov’t Code
§
552.130(c)
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(
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What should I do if I am redacting information from what I am
providing requestor or what I am providing to your office for a
ruling?
•
Follow any statutory requirements
Ex. Gov’t Code
§
552.130(d) and (e)
•
If you will redact or have redacted information from what
you send to our office, tell us and explain the authority.
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Does the requestor have a right of access?
•
Self, Parents of Minor, and Authorized Representatives
•
Criminal Justice Agencies
•
Criminal History Record Information (“CHRI”)
•
Section 550.065 of the Transportation Code
Access to CR-3 Accident Reports
•
Article 2.1396 of the Code of Criminal Procedure
Arrestee access to video of DWI
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Does the requestor have a right of access?
•
Self, Parents of Minor, and Authorized Representatives
•
Criminal Justice Agencies
•
Criminal History Record Information (“CHRI”)
•
Section 550.065 of the Transportation Code
Access to CR-3 Accident Reports
•
Article 2.1396 of the Code of Criminal Procedure
Arrestee access to video of DWI
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PIA Pr
o Knows
:
If requestor’s relation or
involvement is
not clear,
tell us who he/she is if you
are able to
Does the requestor have a right of access?
•
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Privacy Interests -- Gov’t Code
§
552.023
•
Common-law and constitutional privacy
•
Exceptions that protect privacy interests -
ex. sections 552.130, 552.136, 552.117, 552.1175
Gov’t Code
§
552.137(b)
Fam. Code
§
261.201(k)
Fam. Code
§
58.008(d)(3)-(4)
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Does the requestor have a right of access?
•
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Fam. Code
§
58.008(d)(2)
•
Fam. Code
§
58.008(e) does not apply when the
requestor is a criminal justice agency
•
Access prevails over common-law privacy and
general exceptions (ex. 552.103, 552.108,
552.1175)
•
Access does not prevail over Gov’t
Code
§
552.130
CHRI Access under chapter 411 of the Government
Code
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Does the requestor have a right of access?
•
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“
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)
•
Criminal justice agencies
Sections 411.087(a)(2) and 411.089(a) of the
Government Code
Must be for criminal justice purpose
•
State agencies
Section 411.087(a)(2) and subchapters F and
E-1 of chapter 411 of the Government Code
•
Federal agencies
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Does the requestor have a right of access?
•
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Access to CR-3 Accident Reports
•
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Arrestee access to video of DWI
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What should I do if the requestor has a right of access?
•
If you have released or will release certain information
pursuant to a right of access, tell us.
Ex. We have released the responsive CR-3 to this
requestor pursuant to Transp. Code
§
550.065(c).
Ex. We have released CHRI to this requestor
pursuant to chapter 411 of the Government Code and
raise Gov’t Code
§
552.108(a)(1) for the remaining
requested information.
Ex. We have released the DWI dash camera video to
this requestor pursuant to art. 2.1396 of the Code of
Criminal Procedure.
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What is intergovernmental transfer?
•
Discretionary – “may” release
•
Between Texas governmental bodies
•
For information that is not confidential by statute with
release provisions (ex. Gov’t Code
§
552.130 and Fam.
Code
§
261.201)
•
If you choose to release under doctrine, it is not a
voluntary release under Gov’t Code
§
552.007. If you
aren’t sure, request a ruling.
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What should we do if we receive multiple requests for the
same or similar information?
•
To combine or to not combine: things to consider
•
Tell our office if you are sending in subsequent requests
and identify them
Ex. Your internal ID# or our assigned OAG ID#
•
Call the ORD Hotline to get our OAG ID#
Ex. Request from Alexander Hamilton received on
November 2, 2018.
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What information should I send your office when requesting a
ruling?
•
Items required under Gov’t Code
§
552.301
•
Responsive information you seek to withhold
•
Representative sample (generally) – Gov’t
Code
§
552.301(e)(1)(D)
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Are the interests of any third parties at issue?
•
Other governmental bodies
Gov’t Code
§
552.108 representation
Gov’t Code
§
552.304
•
Private third parties
Gov’t Code
§
552.305
Tell us who you notified
•
Nat’l Archives & Records Admin. v. Favish
, 541 U.S.
157 (2004) – surviving family members’ constitutional
privacy interests in information relating to deceased
relatives
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:
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s
•
Does not include
: DOBs, information subject to Gov’t
Code
§
552.130, the identity of witnesses, or the identity
of a victim who is not a complainant
•
Includes
: Detailed description of offense, names of
investigating officers, and arrestee name and SSN
Can raise other exceptions for basic information
Gov’t Code
§
552.103 will generally not protect basic
information of a crime
5
5
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1
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:
•
Tell us you have released basic information and/or show
us what you released as basic information by clearly
labeling information
•
Will you redact the living arrestee’s SSN under Gov’t
Code
§
552.147(b), which you can do without seeking a
ruling from our office?
•
If you are releasing more than what is considered basic
information, will you redact information pursuant to
another authority that authorizes you to do so?
5
5
2
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1
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•
How does it relate to a pending
criminal
investigation or
prosecution?
•
Does your governmental body have the law enforcement
interest in the criminal investigation or prosecution?
If not, you might need to notify the entity with law
enforcement interest of the request
5
5
2
.
1
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8
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•
How does it relate to a pending
criminal
investigation or
prosecution?
•
Does your governmental body have the law enforcement
interest in the criminal investigation or prosecution?
If not, you might need to notify the entity with law
enforcement interest of the request
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a
t
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?
•
If Gov’t Code
§
552.022(a)(1) applies, Gov’t
Code
§
552.103 will not
5
5
2
.
1
0
8
G
o
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A
(
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2
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f
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)
What is the “552.108(a)(1) Previous Determination”?
Does it apply to me?
What are the requirements?
5
5
2
.
1
0
8
G
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(
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1
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f
3
)
What is the “552.108(a)(1) Previous Determination”?
Does it apply to me?
•
You must have requested and obtained the previous
determination from our office
What are the requirements?
5
5
2
.
1
0
8
G
o
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m
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(
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2
o
f
3
)
What is the “552.108(a)(1) Previous Determination”?
Does it apply to me?
•
You must have requested and obtained the previous
determination from our office
What are the requirements?
•
Gov’t Code
§
552.108(a)(1) applies
•
No requestor right of access
•
Basic information (or more) must be released within 5
business days after receiving the request
•
Must provide certain notice to requestor
•
Requestor has not previously requested the information
under same scheme
5
5
2
.
1
0
8
G
o
v
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m
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C
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:
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(
S
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3
o
f
3
)
Sections 418.176 through 418.182 of the Government
Code:
•
G
o
v
’
t
C
o
d
e
§
4
1
8
.
1
7
6
–
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G
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4
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1
7
7
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i
s
m
Gov’t Code
§
421.001(2) defines “critical
infrastructure”
E
x
.
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c
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y
Ex. Security camera footage of state capitol
Ex. Map with locations of security cameras in jail
T
e
x
a
s
H
o
m
e
l
a
n
d
S
e
c
u
r
i
t
y
A
c
t
(
S
l
i
d
e
3
o
f
5
)
Homeland Security Act (“HSA”) provisions do not apply
automatically.
We need your explanation of how a HSA provision applies
to the records at issue.
T
e
x
a
s
H
o
m
e
l
a
n
d
S
e
c
u
r
i
t
y
A
c
t
(
S
l
i
d
e
4
o
f
5
)
Did you receive a “7-Day Letter” from our office pursuant to
Gov’t Code
§
552.303 asking about an HSA provision?
•
Respond in 7 calendar days, not business days
•
Answer our question directly and completely
•
Questions? Call the Open Government Hotline
T
e
x
a
s
H
o
m
e
l
a
n
d
S
e
c
u
r
i
t
y
A
c
t
(
S
l
i
d
e
5
o
f
5
)
B
o
d
y
C
a
m
e
r
a
R
e
q
u
e
s
t
s
Occupations Code
§
1701.661
Views expressed are those of the presenters, do not constitute legal advice,
and are not official opinions of the Office of the Texas Attorney General.
Is it a proper request for a body camera recording?
The request for information must state:
•
Date
and a
pproximate time
of recording
•
Specific location
where recording occurred
•
Name of at least one person
who is a subject of the
recording
Occ. Code
§
1701.661(a) - All elements must be present to
be a proper request for body camera video.
E
l
e
m
e
n
t
s
o
f
a
P
r
o
p
e
r
B
o
d
y
C
a
m
e
r
a
R
e
q
u
e
s
t
(
S
l
i
d
e
1
o
f
2
)
If the request is missing any of the elements listed in section
1701.661(a), it is not a proper request for body camera
video.
Note
: Occ. Code
§
1701.661(b) says the requestor can ask for
the information again.
If it is a proper request, the 552.301 deadlines are extended
to 20 and 25 business days.
E
l
e
m
e
n
t
s
o
f
a
P
r
o
p
e
r
B
o
d
y
C
a
m
e
r
a
R
e
q
u
e
s
t
(
S
l
i
d
e
2
o
f
2
)
Requestor Name: Alexander Hamilton
Request for:
All information pertaining to case number 2018-1458,
including any 911 audio or body camera videos.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
1
o
f
1
2
)
Requestor Name: Alexander Hamilton
Request for:
All information pertaining to case number 2018-1458,
including any 911 audio or body camera videos.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
2
o
f
1
2
)
This is not a proper body camera request – missing
date, time,
location, subject name
.
Note
: This is still a proper request for public information for the
non-body camera information that is responsive.
Requestor Name: Aaron Burr
Request for:
All information pertaining to case number 2018-5659 in
which Alexander Hamilton was arrested around 7 p.m.
at the intersection of Congress Avenue and 9
th
Street.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
3
o
f
1
2
)
Requestor Name: Aaron Burr
Request for:
All information pertaining to case number 2018-5659 in
which Alexander Hamilton was arrested around 7 p.m.
at the intersection of Congress Avenue and 9
th
Street.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
4
o
f
1
2
)
This is not a proper body camera request – no
date
mentioned.
Note
: This is still a proper request for public information for the
non-body camera information that is responsive.
.
Requestor Name: Eliza Hamilton
Request for:
All information pertaining to a theft incident involving
Maria Reyolds on December 14, 2017, at the Richard
Rodgers Theatre.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
5
o
f
1
2
)
Requestor Name: Eliza Hamilton
Request for:
All information pertaining to a theft incident involving
Maria Reyolds on December 14, 2017, at the Richard
Rodgers Theatre.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
6
o
f
1
2
)
Not a proper body camera request – no
time
mentioned.
Note
: This is still a proper request for public information for the
non-body camera information that is responsive.
Requestor Name: James Madison
Request for:
The investigation file regarding the arrest of John
Laurens around 1 a.m. on December 3, 2017, for
burglary of habitation.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
7
o
f
1
2
)
Requestor Name: James Madison
Request for:
The investigation file regarding the arrest of John
Laurens around 1 a.m. on December 3, 2017, for
burglary of habitation.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
8
o
f
1
2
)
Not a proper body camera request – no
location
mentioned.
Note
: This is still a proper request for public information for the
non-body camera information that is responsive.
Requestor Name: NBC News
Request for:
Officer George King’s body camera video pertaining to
a shoplifting incident at Walmart on December 3, 2018
at about 7 p.m.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
9
o
f
1
2
)
Requestor Name: NBC News
Request for:
Officer George King’s body camera video pertaining to
a shoplifting incident at Walmart on December 3, 2017
at about 7 p.m.
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
1
0
o
f
1
2
)
Not a proper body camera request – no
subject of the
recording
named.
Requestor Name: George Washington
Request for:
Information pertaining to the crash I was in. (Please see
attached CR-3 report.)
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
1
1
o
f
1
2
)
Requestor Name: George Washington
Request for:
Information pertaining to the crash I was in. (Please see
attached CR-3 report.)
P
r
o
p
e
r
B
o
d
y
W
o
r
n
C
a
m
e
r
a
R
e
q
u
e
s
t
?
(
S
l
i
d
e
1
2
o
f
1
2
)
This is a proper body camera request if the CR-3 has the
required information for the recording.
Proceed to section 1701.661(h).
Section 1701.661(h) of the Occupations Code
T
h
e
r
e
c
o
r
d
i
n
g
w
a
s
r
e
q
u
i
r
e
d
t
o
b
e
m
a
d
e
b
y
l
a
w
o
r
t
h
e
p
o
l
i
c
i
e
s
o
f
t
h
e
l
a
w
e
n
f
o
r
c
e
m
e
n
t
e
n
t
i
t
y
;
a
n
d
Relates to a law enforcement purpose – i.e. it is not purely
personal.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
1
o
f
6
)
Section 1701.661(h) of the Occupations Code
T
h
e
r
e
c
o
r
d
i
n
g
w
a
s
r
e
q
u
i
r
e
d
t
o
b
e
m
a
d
e
b
y
l
a
w
o
r
t
h
e
p
o
l
i
c
i
e
s
o
f
t
h
e
l
a
w
e
n
f
o
r
c
e
m
e
n
t
e
n
t
i
t
y
;
a
n
d
Relates to a law enforcement purpose – i.e. it is not purely
personal.
Does (h) apply?
•
If one or both of the above are not true, the recording is
confidential under section 1701.661(h).
•
If both of the above are true, proceed to subsections
1701.661(c) and (d).
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
2
o
f
6
)
Officer George King forgets to turn off his body worn
camera and the recording captures his discussion about
picking up milk from the store when his work shift is
over.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
3
o
f
6
)
Officer George King forgets to turn off his body worn
camera and the recording captures his discussion about
picking up milk from the store when his work shift is
over.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
4
o
f
6
)
The recording is confidential under Occ. Code§1701.661(h)
and must be withheld under Gov’t Code§552.101.
The body camera of Officer George King captures his
on foot chase of a robbery suspect through a
neighborhood.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
5
o
f
6
)
The body camera of Officer George King captures his
on foot chase of a robbery suspect through a
neighborhood.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
h
)
(
S
l
i
d
e
6
o
f
6
)
The recording is
not
confidential under (h).
Proceed to sections 1701.661(c) and (d).
Sections 1701.661(c) and (d) of the Occupations Code
Could the recording be used as evidence in a criminal
prosecution?
•
N
o
.
–
T
h
e
r
e
c
o
r
d
i
n
g
i
s
c
o
n
f
i
d
e
n
t
i
a
l
u
n
d
e
r
s
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
c
)
.
•
Y
e
s
.
–
P
r
o
c
e
e
d
t
o
s
e
c
t
i
o
n
1
7
0
1
.
6
6
0
(
a
)
.
Note
: If the recording could not be used as evidence in a
criminal prosecution, you need to explain why.
S
e
c
t
i
o
n
s
1
7
0
1
.
6
6
1
(
c
)
a
n
d
(
d
)
Section 1701.660(a) of the Occupations Code
If the recording:
•
D
o
c
u
m
e
n
t
s
u
s
e
o
f
d
e
a
d
l
y
f
o
r
c
e
b
y
a
p
e
a
c
e
o
f
f
i
c
e
r
o
r
•
Relates to an administrative or criminal investigation of
an officer
Ask: Is the criminal or administrative investigation pending?
•
Y
e
s
.
–
T
h
e
r
e
c
o
r
d
i
n
g
i
s
c
o
n
f
i
d
e
n
t
i
a
l
,
b
u
t
t
h
e
r
e
i
s
d
i
s
c
r
e
t
i
o
n
t
o
r
e
l
e
a
s
e
i
f
i
t
w
o
u
l
d
f
u
r
t
h
e
r
a
l
a
w
e
n
f
o
r
c
e
m
e
n
t
p
u
r
p
o
s
e
.
•
N
o
.
–
P
r
o
c
e
e
d
t
o
s
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
0
(
a
)
Section 1701.661(f) of the Occupations Code
Two aspects of (f) that could apply:
•
(1) Was the recording in a private space?
•
(2) Does the recording involve the investigation of
conduct that constitutes a misdemeanor punishable by
fine only that did not result in an arrest?
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
Was the recording in a private space?
•
Y
e
s
.
–
D
o
y
o
u
h
a
v
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c
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r
d
i
n
g
t
o
r
e
l
e
a
s
e
?
No. – Recording is confidential under (f).
Yes. – Proceed to second aspect of (f).
•
N
o
.
–
P
r
o
c
e
e
d
t
o
s
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c
o
n
d
a
s
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f
(
f
)
.
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c
t
i
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n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
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v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
1
o
f
1
0
)
Requestor: NBC News
Request for: Information pertaining to an assault that
occurred outside of the Richard Rodgers Theatre
around 9 p.m. on December 3, 2017.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
2
o
f
1
0
)
Requestor: NBC News
Request for: Information pertaining to an assault that
occurred outside of the Richard Rodgers Theatre
around 9 p.m. on December 3, 2017.
This is not a proper body camera request – no
subjects
named
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
3
o
f
1
0
)
Requestor: NBC News
Request for: Information pertaining to an assault
outside Richard Rodgers Theatre around 9 p.m. on
December 3, 2017, involving Aaron Burr.
Body camera recording shows:
Officer George King
interviewing Eliza inside of her house.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
4
o
f
1
0
)
Requestor: NBC News
Request for: Information pertaining to an assault
outside Richard Rodgers Theatre around 9 p.m. on
December 3, 2017, involving Aaron Burr.
Body camera recording shows:
Officer George King
interviewing Eliza inside of her house.
Private space recording with no written consent from subject
of recording (Eliza).
Recording is confidential under section 1701.661(f) and must
be withheld under section 552.101 of the Government Code.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
5
o
f
1
0
)
Requestor: Eliza Hamilton
Request for: Information pertaining to an assault that I
witnessed outside my home at 226 West 42nd Street
around 9 p.m. on December 3, 2017.
Body camera recording shows:
Officer George King
interviewing the requestor in front of his police vehicle
parked on the street in front of the requestor’s home.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
6
o
f
1
0
)
Requestor: Eliza Hamilton
Request for: Information pertaining to an assault that I
witnessed outside my home at 226 West 42nd Street
around 9 p.m. on December 3, 2017.
Body camera recording shows:
Officer George King
interviewing the requestor in front of his police vehicle
parked on the street in front of the requestor’s home.
This is a proper body camera request. Although the
requestor did not name a subject of the body camera
recording in her request, she is the subject of the recording.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
7
o
f
1
0
)
Requestor: Eliza Hamilton
Request for: Information pertaining to an assault that I
witnessed outside my home at 226 West 42nd Street
around 9 p.m. on December 3, 2017.
Body camera recording shows:
Officer George King
interviewing the requestor in front of his police vehicle
parked on the street in front of the requestor’s home.
Public space recording – proceed to second aspect of
section 1701.661(f).
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
8
o
f
1
0
)
Requestor: Eliza Hamilton
Request for: Information pertaining to an assault that I
witnessed outside my home at 226 West 42nd Street
around 9 p.m. on December 3, 2017.
Body camera shows:
Officer George King interviewing
the requestor inside the requestor’s home.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
9
o
f
1
0
)
Requestor: Eliza Hamilton
Request for: Information pertaining to an assault that I
witnessed outside my home at 226 West 42nd Street
around 9 p.m. on December 3, 2017.
Body camera shows:
Officer George King interviewing
the requestor inside the requestor’s home.
Private space recording with implied authorization of the requestor,
who is the subject of the recording.
Proceed to second aspect of section 1701.661(f).
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
P
r
i
v
a
t
e
S
p
a
c
e
(
S
l
i
d
e
1
0
o
f
1
0
)
Does the recording involve a misdemeanor punishable by
fine only that did not result in an arrest?
•
Y
e
s
.
–
D
o
y
o
u
h
a
v
e
w
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t
(
s
)
o
f
t
h
e
r
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d
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g
?
No. – Recording is confidential under (f).
Yes. – Proceed to section 1701.661(e).
•
N
o
.
–
P
r
o
c
e
e
d
t
o
s
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
e
)
.
Note
: Tell us if the recording pertains to an investigation of a
misdemeanor punishable by fine only and did not result in
arrest.
S
e
c
t
i
o
n
1
7
0
1
.
6
6
1
(
f
)
:
M
i
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e
a
n
o
r
Section 1701.661(e) of the Occupations Code
If it is a proper body camera request
(1701.661(a))
:
That relates to a law enforcement purpose
(1701.661(h))
;
That could be used as evidence in a criminal prosecution
(1701.661(c)-(d))
;
T
h
a
t
d
o
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s
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r
(
1
7
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1
.
6
6
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(
a
)
)
;
A
N
D
Either:
•
N
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i
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r
a
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6
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f
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a
p
p
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O
R
•
You have written authorization to release the recording from
the subject(s) of the recording if either aspect of
1701.661(f)
applies:
Y
o
u
m
a
y
r
e
l
e
a
s
e
t
h
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1
7
0
1
.
6
6
1
(
e
)
Requestor Name: Alexander Hamilton
Request for:
All information pertaining to case number 2018-5659 in
which I was arrested for DWI around 7 p.m. at the
intersection of Congress Avenue and 9
th
Street.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
1
o
f
1
0
)
The City of Broadway’s Police Department receives
this request and determines the department has an
offense report, a dash camera recording, and a body
camera recording pertaining to this incident.
The department asks for a ruling to withhold
information under section 552.108(a)(1). The
department also argues the body camera recording
has not been requested properly under section
1701.661(a).
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
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2
o
f
1
0
)
Did the requestor make a proper request for the
body camera recording?
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
3
o
f
1
0
)
Did the requestor make a proper request for the
body camera recording?
•
Not a proper body camera request – no
date
of
recording provided.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
4
o
f
1
0
)
Did the requestor make a proper request for the
body camera recording?
•
Not a proper body camera request – no
date
of
recording provided.
Does the requestor have a right of access to the
body camera recording under article 2.1396 of the
Code of Criminal Procedure?
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
5
o
f
1
0
)
Did the requestor make a proper request for the
body camera recording?
•
Not a proper body camera request – no
date
of
recording provided.
Does the requestor have a right of access to the
body camera recording under article 2.1396 of the
Code of Criminal Procedure?
•
No, the body camera recording must be
requested properly in order to address article
2.1396.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
6
o
f
1
0
)
May the department withhold the remaining
information under section 552.108(a)(1)?
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
7
o
f
1
0
)
May the department withhold the remaining
information under section 552.108(a)(1)?
•
Generally, yes, if the department explains
release of the information would interfere with the
department’s ongoing criminal investigation.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
8
o
f
1
0
)
May the department withhold the remaining
information under section 552.108(a)(1)?
•
Generally, yes, if the department explains
release of the information would interfere with the
department’s ongoing criminal investigation.
The dash camera recording consists of footage of
Hamilton’s stop, field sobriety tests, and his arrest.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
9
o
f
1
0
)
May the department withhold the remaining
information under section 552.108(a)(1)?
•
Generally, yes, if the department explains
release of the information would interfere with the
department’s ongoing criminal investigation.
The dash camera recording consists of footage of
Hamilton’s stop, field sobriety tests, and his arrest.
•
The dash camera recording must be released to
this requestor pursuant to article 2.1396 of the
Code of Criminal Procedure.
O
v
e
r
v
i
e
w
H
y
p
o
t
h
e
t
i
c
a
l
(
S
l
i
d
e
1
0
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f
1
0
)
Q
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(877) OPEN-TEX
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https://www.texasattorneygeneral.gov/open/index.shtml
This presentation covers topics related to releasing, redacting, and requesting rulings in law enforcement with a focus on advanced Public Information Act (PIA) practices and body camera recordings. It includes duties upon receiving a request, considerations for Texas Homeland Security Act provisions, and information on protecting data through redacting and statutory authority.
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Presentation Transcript
Law Enforcement: Advanced PIA and Body Cameras Tamara Smith Michelle Case Assistant Attorneys General Open Records Division
Advanced PIA and Body Cameras What we will cover: Releasing, redacting, and requesting a ruling Additional considerations for Gov t Code 552.108 Texas Homeland Security Act provisions Body camera recordings
Receipt of a Request (Slide 1 of 4) Duties Upon Receipt of Proper Request: Promptly release the requested information Request a ruling
Receipt of a Request (Slide 2 of 4) Duties Upon Receipt of Proper Request: Promptly release the requested information Request a ruling Previous Determinations Two Types
Receipt of a Request (Slide 3 of 4) Duties Upon Receipt of Proper Request: Promptly release the requested information Request a ruling Previous Determinations Two Types Information Not Protected by Discretionary Exceptions
Receipt of a Request (Slide 4 of 4) Duties Upon Receipt of Proper Request: Promptly release the requested information Request a ruling Previous Determinations Two Types Information Not Protected by Discretionary Exceptions Redacting Information Previous determination Statutory authority Ex. Gov t Code 552.130(c)
Receipt of Request: Redacting Information What should I do if I am redacting information from what I am providing requestor or what I am providing to your office for a ruling? Follow any statutory requirements Ex. Gov t Code 552.130(d) and (e) If you will redact or have redacted information from what you send to our office, tell us and explain the authority.
Receipt of a Request: Right of Access (Slide 1 of 7) Does the requestor have a right of access? Self, Parents of Minor, and Authorized Representatives Criminal Justice Agencies Criminal History Record Information ( CHRI ) Section 550.065 of the Transportation Code Access to CR-3 Accident Reports Article 2.1396 of the Code of Criminal Procedure Arrestee access to video of DWI
Receipt of a Request: Right of Access (Slide 2 of 7) Does the requestor have a right of access? Self, Parents of Minor, and Authorized Representatives Criminal Justice Agencies Criminal History Record Information ( CHRI ) Section 550.065 of the Transportation Code Access to CR-3 Accident Reports Article 2.1396 of the Code of Criminal Procedure Arrestee access to video of DWI PIA Pro Knows: If requestor s relation or involvement is not clear, tell us who he/she is if you are able to
Receipt of a Request: Right of Access (Slide 3 of 7) Does the requestor have a right of access? Self, Parents of Minor, and Authorized Representatives Privacy Interests -- Gov t Code 552.023 Common-law and constitutional privacy Exceptions that protect privacy interests - ex. sections 552.130, 552.136, 552.117, 552.1175 Gov t Code 552.137(b) Fam. Code 261.201(k) Fam. Code 58.008(d)(3)-(4)
Receipt of a Request: Right of Access (Slide 4 of 7) Does the requestor have a right of access? Criminal Justice Agencies Fam. Code 58.008(d)(2) Fam. Code 58.008(e) does not apply when the requestor is a criminal justice agency Access prevails over common-law privacy and general exceptions (ex. 552.103, 552.108, 552.1175) Access does not prevail over Gov t Code 552.130 CHRI Access under chapter 411 of the Government Code
Receipt of a Request: Right of Access (Slide 5 of 7) Does the requestor have a right of access? Criminal History Record Information ( CHRI ) Criminal justice agencies Sections 411.087(a)(2) and 411.089(a) of the Government Code Must be for criminal justice purpose State agencies Section 411.087(a)(2) and subchapters F and E-1 of chapter 411 of the Government Code Federal agencies
Receipt of a Request: Right of Access (Slide 6 of 7) Does the requestor have a right of access? 550.065(c) and (c-1) of the Transportation Code Access to CR-3 Accident Reports Article 2.1396 of the Code of Criminal Procedure Arrestee access to video of DWI
Receipt of a Request: Right of Access (Slide 7 of 7) What should I do if the requestor has a right of access? If you have released or will release certain information pursuant to a right of access, tell us. Ex. We have released the responsive CR-3 to this requestor pursuant to Transp. Code 550.065(c). Ex. We have released CHRI to this requestor pursuant to chapter 411 of the Government Code and raise Gov t Code 552.108(a)(1) for the remaining requested information. Ex. We have released the DWI dash camera video to this requestor pursuant to art. 2.1396 of the Code of Criminal Procedure.
Receipt of a Request: Intergovernmental Transfer What is intergovernmental transfer? Discretionary may release Between Texas governmental bodies For information that is not confidential by statute with release provisions (ex. Gov t Code 552.130 and Fam. Code 261.201) If you choose to release under doctrine, it is not a voluntary release under Gov t Code 552.007. If you aren t sure, request a ruling.
Receipt of a Request: Multiple Requests What should we do if we receive multiple requests for the same or similar information? To combine or to not combine: things to consider Tell our office if you are sending in subsequent requests and identify them Ex. Your internal ID# or our assigned OAG ID# Call the ORD Hotline to get our OAG ID# Ex. Request from Alexander Hamilton received on November 2, 2018.
Receipt of a Request: Submitting Information What information should I send your office when requesting a ruling? Items required under Gov t Code 552.301 Responsive information you seek to withhold Representative sample (generally) Gov t Code 552.301(e)(1)(D)
Receipt of a Request: Other Interests Are the interests of any third parties at issue? Other governmental bodies Gov t Code 552.108 representation Gov t Code 552.304 Private third parties Gov t Code 552.305 Tell us who you notified Nat l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) surviving family members constitutional privacy interests in information relating to deceased relatives
552.108 Government Code: Basic Information (Slide 1 of 2) Basic Information: Reminders Does not include: DOBs, information subject to Gov t Code 552.130, the identity of witnesses, or the identity of a victim who is not a complainant Includes: Detailed description of offense, names of investigating officers, and arrestee name and SSN Can raise other exceptions for basic information Gov t Code 552.103 will generally not protect basic information of a crime
552.108 Government Code: Basic Information (Slide 2 of 2) If you are raising section 552.108 for an offense report: Tell us you have released basic information and/or show us what you released as basic information by clearly labeling information Will you redact the living arrestee s SSN under Gov t Code 552.147(b), which you can do without seeking a ruling from our office? If you are releasing more than what is considered basic information, will you redact information pursuant to another authority that authorizes you to do so?
552.108 Government Code: Personnel-Administrative-IA (Slide 1 of 2) Raising section 552.108(a)(1) for personnel documents, administrative information, and/or Internal Affairs investigations How does it relate to a pending criminal investigation or prosecution? Does your governmental body have the law enforcement interest in the criminal investigation or prosecution? If not, you might need to notify the entity with law enforcement interest of the request
552.108 Government Code: Personnel-Administrative-IA (Slide 2 of 2) Raising section 552.108(a)(1) for personnel documents, administrative information, and/or Internal Affairs investigations How does it relate to a pending criminal investigation or prosecution? Does your governmental body have the law enforcement interest in the criminal investigation or prosecution? If not, you might need to notify the entity with law enforcement interest of the request Is it a completed administrative investigation? If Gov t Code 552.022(a)(1) applies, Gov t Code 552.103 will not
552.108 Government Code: Previous Determination (Slide 1 of 3) What is the 552.108(a)(1) Previous Determination ? Does it apply to me? What are the requirements?
552.108 Government Code: Previous Determination (Slide 2 of 3) What is the 552.108(a)(1) Previous Determination ? Does it apply to me? You must have requested and obtained the previous determination from our office What are the requirements?
552.108 Government Code: Previous Determination (Slide 3 of 3) What is the 552.108(a)(1) Previous Determination ? Does it apply to me? You must have requested and obtained the previous determination from our office What are the requirements? Gov t Code 552.108(a)(1) applies No requestor right of access Basic information (or more) must be released within 5 business days after receiving the request Must provide certain notice to requestor Requestor has not previously requested the information under same scheme
Texas Homeland Security Act (Slide 1 of 5) Sections 418.176 through 418.182 of the Government Code: 418.176 Certain information relating to Gov t Code emergency response providers 418.177 Information relating to certain Gov t Code risk or vulnerability assessment 418.179 Information relating to Gov t Code encryption codes and security keys for public communications system NOTE: For these three sections, information must be collected, assembled, or maintained for purpose of preventing, detecting, responding to, or investigating act of terrorism or related criminal activity.
Texas Homeland Security Act (Slide 2 of 5) 418.178 Pertains to certain information Gov t Code relating to construction or assembly of explosive, chemical, biological, radiological, or nuclear weapons, including certain materials or specific locations of certain materials 418.180 Certain information prepared Gov t Code for U.S. relating to terrorism that is required to be kept confidential
Texas Homeland Security Act (Slide 3 of 5) 418.181 Information that identifies Gov t Code technical details of critical infrastructure to act of terrorism Gov t Code 421.001(2) defines critical infrastructure Ex. Locations of underground utilities, details of city s backflow prevention system, or blueprint of prison 418.182 Certain information relating to Gov t Code security systems protecting public or private property from act of terrorism or related criminal activity Ex. Security camera footage of state capitol Ex. Map with locations of security cameras in jail
Texas Homeland Security Act (Slide 4 of 5) Homeland Security Act ( HSA ) provisions do not apply automatically. We need your explanation of how a HSA provision applies to the records at issue.
Texas Homeland Security Act (Slide 5 of 5) Did you receive a 7-Day Letter from our office pursuant to Gov t Code 552.303 asking about an HSA provision? Respond in 7 calendar days, not business days Answer our question directly and completely Questions? Call the Open Government Hotline
Body Camera Requests Occupations Code 1701.661 Views expressed are those of the presenters, do not constitute legal advice, and are not official opinions of the Office of the Texas Attorney General.
Elements of a Proper Body Camera Request (Slide 1 of 2) Is it a proper request for a body camera recording? The request for information must state: Date and approximate time of recording Specific location where recording occurred Name of at least one person who is a subject of the recording Occ. Code 1701.661(a) - All elements must be present to be a proper request for body camera video.
Elements of a Proper Body Camera Request (Slide 2 of 2) If the request is missing any of the elements listed in section 1701.661(a), it is not a proper request for body camera video. Note: Occ. Code 1701.661(b) says the requestor can ask for the information again. If it is a proper request, the 552.301 deadlines are extended to 20 and 25 business days.
Proper Body Worn Camera Request? (Slide 1 of 12) Requestor Name: Alexander Hamilton Request for: All information pertaining to case number 2018-1458, including any 911 audio or body camera videos.
Proper Body Worn Camera Request? (Slide 2 of 12) Requestor Name: Alexander Hamilton Request for: All information pertaining to case number 2018-1458, including any 911 audio or body camera videos. This is not a proper body camera request missing date, time, location, subject name. Note: This is still a proper request for public information for the non-body camera information that is responsive.
Proper Body Worn Camera Request? (Slide 3 of 12) Requestor Name: Aaron Burr Request for: All information pertaining to case number 2018-5659 in which Alexander Hamilton was arrested around 7 p.m. at the intersection of Congress Avenue and 9th Street.
Proper Body Worn Camera Request? (Slide 4 of 12) Requestor Name: Aaron Burr Request for: All information pertaining to case number 2018-5659 in which Alexander Hamilton was arrested around 7 p.m. at the intersection of Congress Avenue and 9th Street. This is not a proper body camera request no date mentioned. Note: This is still a proper request for public information for the non-body camera information that is responsive. .
Proper Body Worn Camera Request? (Slide 5 of 12) Requestor Name: Eliza Hamilton Request for: All information pertaining to a theft incident involving Maria Reyolds on December 14, 2017, at the Richard Rodgers Theatre.
Proper Body Worn Camera Request? (Slide 6 of 12) Requestor Name: Eliza Hamilton Request for: All information pertaining to a theft incident involving Maria Reyolds on December 14, 2017, at the Richard Rodgers Theatre. Not a proper body camera request no time mentioned. Note: This is still a proper request for public information for the non-body camera information that is responsive.
Proper Body Worn Camera Request? (Slide 7 of 12) Requestor Name: James Madison Request for: The investigation file regarding the arrest of John Laurens around 1 a.m. on December 3, 2017, for burglary of habitation.
Proper Body Worn Camera Request? (Slide 8 of 12) Requestor Name: James Madison Request for: The investigation file regarding the arrest of John Laurens around 1 a.m. on December 3, 2017, for burglary of habitation. Not a proper body camera request no location mentioned. Note: This is still a proper request for public information for the non-body camera information that is responsive.
Proper Body Worn Camera Request? (Slide 9 of 12) Requestor Name: NBC News Request for: Officer George King s body camera video pertaining to a shoplifting incident at Walmart on December 3, 2018 at about 7 p.m.
Proper Body Worn Camera Request? (Slide 10 of 12) Requestor Name: NBC News Request for: Officer George King s body camera video pertaining to a shoplifting incident at Walmart on December 3, 2017 at about 7 p.m. Not a proper body camera request no subject of the recording named.
Proper Body Worn Camera Request? (Slide 11 of 12) Requestor Name: George Washington Request for: Information pertaining to the crash I was in. (Please see attached CR-3 report.)
Proper Body Worn Camera Request? (Slide 12 of 12) Requestor Name: George Washington Request for: Information pertaining to the crash I was in. (Please see attached CR-3 report.) This is a proper body camera request if the CR-3 has the required information for the recording. Proceed to section 1701.661(h).
Section 1701.661(h) (Slide 1 of 6) Section 1701.661(h) of the Occupations Code The recording was required to be made by law or the policies of the law enforcement entity; and Relates to a law enforcement purpose i.e. it is not purely personal.
Section 1701.661(h) (Slide 2 of 6) Section 1701.661(h) of the Occupations Code The recording was required to be made by law or the policies of the law enforcement entity; and Relates to a law enforcement purpose i.e. it is not purely personal. Does (h) apply? If one or both of the above are not true, the recording is confidential under section 1701.661(h). If both of the above are true, proceed to subsections 1701.661(c) and (d).
Section 1701.661(h) (Slide 3 of 6) Officer George King forgets to turn off his body worn camera and the recording captures his discussion about picking up milk from the store when his work shift is over.
Section 1701.661(h) (Slide 4 of 6) Officer George King forgets to turn off his body worn camera and the recording captures his discussion about picking up milk from the store when his work shift is over. The recording is confidential under Occ. Code 1701.661(h) and must be withheld under Gov t Code 552.101.
Section 1701.661(h) (Slide 5 of 6) The body camera of Officer George King captures his on foot chase of a robbery suspect through a neighborhood.
