Technology Creating New Issues and Concerns

Article by: Hunter B. Schenck

Video Surveillance can provide municipalities with security and peace of mind. However, such technology can also create new issues and concerns. Recordings of surveillance footage are subject to the Right-to-Know Law, and municipalities must address requests for video footage. Some video systems might record over previous footage in order to save space. If so, the municipality might need to reference its document retention policy. Municipalities must make sure to preserve any footage while a request is pending if the footage existed at the time of the initial request.

If the footage does exist, the municipality will then need to determine whether it is proper to release the footage or whether an exemption applies. Exemptions that might apply include the personal security exemption and the public safety exemption. The personal security exemption allows a record to be exempt from the Right-to-Know Law if its disclosure would be reasonably likely to result in substantial and demonstrable risk of physical harm to an individual or to the individual’s personal security. The Office of Open Records or the court will consider whether the municipality can show that releasing the footage would create such a risk. This type of risk might exist where disclosure would reveal blind spots, show gaps in surveillance, or where the system is a deterrent to crime and release would endanger preparedness.

The public safety exemption protects the release of information if it would be reasonably likely to jeopardize or threaten public safety. The municipality would have to show that the footage relates to law enforcement or public safety such that disclosure would threaten the public safety. This might occur where the system ensures that staff and visitors are protected, where release would allow someone to determine weaknesses in the system or allow the system to be circumvented, or attacks to be planned.

Finally, the content of the footage should be considered. It may be exempt from disclosure if it captured criminal activity or activity that is the subject of investigation. Every request should be dealt with quickly to ensure that the applicable time frame is followed. Municipalities should contact their solicitor for further guidance on this issue.

– Published in the 2016 Winter edition of our Municpal Newsletter.