Untitled Texas Attorney General Opinion ( 2018 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 19, 2018
The Honorable Eddie Lucio, Jr. Opinion No. KP-0186
Chair, Committee on Intergovernmental I
Relations Re: Whether and when a municipal law
Texas State Senate enforcement agency is authorized or required to
Post Office Box 12068 release audio or video recordings from a body
Austin, Texas 78711-2068 worn camera to members of the public,
members of the governing body of the
municipality, and civilian employees of the
municipality (RQ-0180-KP)
Dear Senator Lucio:
You ask four questions regarding a municipal law enforcement agency's duty to release
body worn camera recordings made by a member of the agency. 1 Chapter 1701, subchapter N of
the Occupations Code addresses law enforcement agencies' use of body worn cameras. See TEX.
0cc. CODE §§ 1701.651-.663. It defines "body worn camera" as "a recording device that is:
(A) capable of recording, or transmitting to be recorded remotely, video or audio; and (B) worn on
the person of a peace officer, which includes being attached to the officer's clothing or worn as
glasses." Id. § 1701.651 (1 ). That chapter also includes specific rules regarding the release to the
public of information recorded by a body worn camera. See id. § 1701.661.
Related to these provisions, you ask whether a law enforcement agency may release these
recordings in specific circumstances. Your first and third questions ask about release of recordings
when requested by members of the public, so we address those questions together. You first ask:
Is a municipal law enforcement agency prohibited from complying,
authorized to comply, or required to comply with a request by a
member of the public to view a recording from a body worn camera
if the head of the law enforcement agency determines that the
recording could be used as evidence in a criminal prosecutim1 and
that allowing the person to view the recording would interfere with
the detection, investigation, or prosecution of a crime?
'See Letter from Honorable Eddie Lucio, Jr., Chair, Senate Comm. on Intergov'tl. Relations, to Honorable
Ken Paxton, Tex. J\.tt'y Gen. at 1-2 (Sept. 14, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter").
The Honorable Eddie Lucio, Jr. - Page 2 (KP-0186)
Request Letter at 1. 2 Section 1701.661 provides that information recorded by a body worn camera
and held by a law enforcement agency "that is or could be used as evidence in a criminal
prosecution is subject to the requirements" of the Public Information Act ("the Act"). TEX. 0cc.
CODE § 1701.661(d). 3 Thus, upon receiving a proper request, a law enforcement agency must
release the recordings to the public unless the recordings are excepted from disclosure under the
Act or contain information that is confidential or otherwise required by law to be withheld. 4
Section 552.108(a)(l) of the Government Code excepts from disclosure "[i]nformation
held by a law enforcement agency or prosecutor that deals with the detection, investigation, or
prosecution of crime . . . if . . . release of the information would interfere with the detection,
investigation, or prosecution of crime." TEX. Gov'TCODE § 552.108(a)(l). 5 A law enforcement
agency seeking to withhold information under the exception authorized in subsection .
552.108(a)(l) generally "must ask for a decision from the attorney general about whether the
information is within that exception." Id.§ 552.301(a). 6 The request for a ruling from the Attorney
General must include "written comments stating the reasons why the stated exceptions apply that
would allow the information to be withheld." Id. § 552.301(e)(l)(A). Thus, a law enforcement
agency seeking to withhold a body worn camera recording under subsection 552.108(a)(l) must
explain how and why the release of the requested information would interfere with the detection,
investigation, or prosecution of a crime. Upon receipt of authorization from the Attorney General,
a law enforcement agency may withhold the recording of a body worn camera if releasing it to a
member of the public would interfere with the detection, investigation, or prosecution of a crime.
See id.§§ 552.108, .301(a), .306.
That said, the exception to disclosure under section 552.108 is discretionary. A law
enforcement agency may release information recorded by a body worn camera to a member of the
2
In posing this question, you ask us to "assume that the person requesting to view the recording complies
with the requirements of Section I 701.6pl(a), Occupations Code." Id. at 1. That subsection requires a member of
the public to include specific information when submitting a written request for information recorded by a body worn
camera. TEX. 0cc. CODE§ 1701.661(a).
3
Subsection 1701.661 (c) provides that "[ e]xcept as provided by Subsection (d), information recorded by a
body worn camera and held by a law enforcement agency under this subchapter is not subject to the requirements of
Section 552.021, Government Code." Id.§ 1701.661(c); see also TEX. Gov'TCODE § 552.021 ("Public information
is available to the public at a minimum during the normal business hours of the governmental body.").
4
Subsection 1701.661 (f) prohibits a law enforcement agency from releasing a portion of a recording "made
in a private space, or of a recording involving the investigation of conduct that constitutes a misdemeanor punishable
by fine only and does not result in arrest, without written authorization from the person who is the subject of that
portion of the recording or, if the person is deceased, from that person's authorized representative." TEX. 0cc. CODE
§ 1701.661(f).
5
Your question relates specifically to the exception to disclosure in section 552. I 08(a)(I) of the Government
Code, but a "law enforcement agency may ... assert any exceptions to disclosure in Chapter 552, Government Code,
or other law." Id§ 1701.661(e)(2).
6
Subsection 1701.662(a) requires that a governmental body request a decision "from the attorney general
about whether a requested body worn camera recording falls within an exception to public disclosure" not later than
the 20th business day after the date ofreceipt of the written request. Id. § 1701.662(a). Subsection (c) requires that
a governmental body submit the information required by section 552.301(e) of the Government Code not later than
the twenty-fifth business day after the date of the receipt of the request. Id. § I 701.662(c).
The Honorable Eddie Lucio, Jr. - Page 3 (KP-0186)
public "after the agency redacts any information made confidential under Chapter 552,
Government Code, or other law." TEX. 0cc. CODE§ 1701.661(e)(3). The Act "does not prohibit
a governmental body or its officer for public information from voluntarily making part or all of its
information available to the public, unless the disclosure is expressly prohibited by law or the
information is confidential under law." TEX. Gov'T CODE§ 552.007(a).
Relatedly, your third question specifically regards a recording that "could be used as
evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that
would restrict access to the recording." Request Letter at 2. The Act excepts from public
disclosure "information considered to be confidential by law, either constitutional, statutory, or by
judicial decision." TEX. Gov'T CODE§ 552.101. Section 58.008(b) of the Family Code provides
that, with limited exceptions, "law enforcement records concerning a child and information
concerning a child that are stored by electronic means or otherwise and from which a record could
be generated may not be disclosed to the public." TEX. FAM. CODE § 58.008(b). 7 Thus, a law
enforcement agency generally may not release to a member of the public a body worn camera
recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise
relates to a child in a manner that would restrict access to the recording.
Your second and fourth questions ask about requests by a member of the governing body
of the municipality or by a civilian employee of the municipality, and we address those questions
together. You specifically ask:
Is a municipal law enforcement agency prohibited from complying,
authorized to comply, or required to comply with a request by a
member of the governing body of the municipality or by a civilian
employee of the municipality whose duties include supervision or
oversight of the law enforcement agency (such as a city manager) to
view a recording from a body worn camera if the head of the law
enforcement agency determines that the recording could be used as
evidence in a criminal prosecution and that allowing the person to
view the recording would interfere with the detection, investigation,
or prosecution of crime?
Request Letter at 1. Assuming a request is made in the requestor's official capacity, a request by
a member of the governing body of the municipality or a civilian employee in an oversight role is
not a request by the "public" under the Act. See Tex. Att'y Gen. Op. No. JC-0283 (2000) at 3.
Thus, the exception in the Act allowing the agency to withhold the recordings from the public due
to interference with the detection, investigation, or prosecution of a crime is not applicable.
A municipal law enforcement agency is established by and accountable to the governing
body of the municipality. See TEX. Loe. Gov'T CODE§§ 341.003 ("A home-rule municipality
may provide for a police department."); 341.00l(a) ("The governing body of a Type A general-
law municipality may establish and regulate a municipal police force."). While we have found no
7 Subsection 58.008(d) authorizes a juvenile justice agency, a criminal justice agency, the child, or the child's
parent or guardian to inspect or copy law enforcement records concerning a child. TEX. FAM. CODE§ 58.008(d).
The Honorable Eddie Lucio, Jr. - Page 4 (KP-0186)
Texas court decisions addressing this issue in the context of municipal law enforcement agency
records, "Texas attorneys general have consistently concluded that a member of a governing body
has an inherent right of access to the records of that body when requested in the member's official
capacity and for the member's performance of official duties." Tex. Att'y Gen. Op. No. KP-0021
(2015) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0138 (2004) at 3, JC-0283 (2000) at 3, JC-0120
(1999) at 3, JM-119 (1983) at 3. We find no law authorizing a municipal law enforcement agency
to withhold from a member of the municipal governing body a recording from a body worn camera
when the request is made in the member's official capacity. Whether civilian employees may
access the recordings will depend on the authority given those employees by the municipal
governing body and the internal policies and procedures of the municipality. See Tex. Att'y Gen.
Op. No. JC-0283 (200Q) at 4 (authorizing the release of confidential information to the city
manager upon consent of the governing body of the municipality); TEX. 0cc. CODE§ 1701.655(a),
(b)(6) (requiring a law enforcement agency that operates a body worn camera program to adopt a
policy for the use of body worn cameras, including procedures for supervisory or internal review).
Finally, you also ask about a member of the governing body's access to a recording that
"could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child
in a manner that would restrict access to the recording." Request Letter at 2. Family Code
subsection 58.008(b) generally prohibits the release oflaw enforcement records concerning a child
"to the public." TEX. FAM. CODE§ 58.008(b). As discussed above, a request by a member of the
governing body of the municipality or a civilian employee in an oversight role is not a request by
the public. Therefore, subsection 58.008(b) does not restrict a member of the governi;ng body's
access to recordings involving a child.
The Honorable Eddie Lucio, Jr. - Page 5 (KP-0186)
SUMMARY
Pursuant to section 552.108(a)(l) of the Government Code,
upon receiving authorization from the Attorney General, a law
enforcement agency may withhold the recording of a body worn
camera if releasing it to a member of the public would interfere with
the detection, investigation, or prosecution of a crime. The
exception to disclosure under section 552.108 is discretionary, and
a law enforcement agency may release information recorded by a
body worn camera to a member of the public after the agency redacts
any information made confidential by law.
With narrow exceptions, section 58.008 of the Family Code
prohibits a law enforcement agency from releasing to a member of
the public a body worn camera recording that could be used as
evidence in a juvenile court proceeding or depicts or otherwise
relates to a child in a manner that would restrict access to the
recording.
A municipal law enforcement agency may not withhold from
a member of the municipal governing body a recording from a body
worn camera when the request is made in the member's official
capacity. Whether civilian employees may access the recordings
will depend on the authority given those employees by the municipal
governing body and the internal policies and procedures of the
municipality.
Very truly yours
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee