Loophole in state law allows police to block the release of body camera video

SOUTH PADRE ISLAND, TEXAS (ValleyCentral) — When it comes to body camera video, what happens on South Padre Island stays on South Padre Island.

Officers who patrol the only tropical island in Texas are equipped with body cameras, but what they record almost always remains under wraps.

South Padre Island never purchased the software required to blur license plates or mute the audio when a police officer reads a suspect’s date of birth over the radio. As a result, the city rarely releases body camera video.

“It’s just something we’ve never invested in,” said City Secretary Angelique “Nikki” Soto. “And then you’ve got to have the staff to do it.”

When the city receives a request for body camera video, the footage is reviewed for any information that isn’t subject to release.

“Our due diligence is not just honoring your rights to public records, but it’s also protecting confidential information that you may not be privy to,” Soto said. “So that’s kind of the balance that we have to put into it.”

If the video shows any information that isn’t subject to release, South Padre Island asks the Texas Attorney General’s Office for permission to withhold not just the confidential information but the whole video.

It’s a simple argument. And it works.

“You state the city lacks the technological capability to redact the confidential information in the video recordings at issue,” the Attorney General’s Office wrote to South Padre Island in July 2022. “Accordingly, the city must withhold the entireties of the submitted video recordings under section 552.130 of the Government Code.”

The city’s inability to redact video doesn’t just affect public access to footage that shows other people. It also occasionally prevents people from obtaining video of themselves.

In 2022, an attorney filed a public information request with South Padre Island for video that showed a client.

The video included motor vehicle information, so South Padre Island requested a decision from the Attorney General’s Office.

While the attorney had a right to view his or her client’s information, the video also contained motor vehicle information that belonged to another person.

“You state the department does not have the technological capability to redact the motor vehicle record information from the recordings,” the Attorney General’s Office wrote to South Padre Island in December 2022. “Accordingly, the department must withhold the video recordings in their entireties under section 552.130.”

South Padre Island isn’t the only city that claims it can’t redact body camera video.

Palmview made the same argument in a letter submitted to the Attorney General’s Office in January.

“The responsive body-worn camera recording includes visible license plate numbers. This information is confidential under section 552.130,” according to a letter from Austin-based law firm O’Hanlon Demerath & Castillo, which represents the city of Palmview, to the Attorney General’s Office. “However, the City does not have the technological capability to redact the recording.”

That may change in a few months.

Palmview uses body cameras manufactured by Motorola, which plans to make redaction tools available to all customers who use the company’s cloud platform, said Chief of Staff Irma Garza. Palmview may be able to start using the software in April or May.

THE CAMERAS

Nearly every law enforcement agency in the Rio Grande Valley provides officers with body cameras.

The video isn’t just for criminal cases, said Pharr police Chief Juan Gonzalez. Supervisors can review the footage to provide officers with feedback or investigate complaints.

“We can look at that to ensure that we’re doing the best that we can,” Gonzalez said. “And providing the best service out to our communities.”

The video provides both the police department and the public with a way to review decisions made by officers.

“At a point, perhaps, where there might be some questions as to what happened, well, the video will shed some light and some truth as far as what happened in the incidents,” Gonzalez said.

Before any body camera video is released, Pharr reviews the footage for private information. Pharr also reviews the audio, which frequently contains addresses, phone numbers and dates of birth.

“Anything sensitive in nature would need to be redacted,” said Pharr police Lt. Guadalupe Garcia, who supervises the Criminal Investigation Division.

Pharr uses software provided by Axon, a company that sells body cameras, to redact the video.

“And it’s user-friendly,” Garcia said. “It is time consuming. But it’s not hard.”

For example, Garcia said he could blur a driver’s license and the software would make sure the license remained blurred as it moved across the screen.

“If they’re not moving that fast, it’ll follow it. But if it’s a quick motion, unfortunately, you would have to go frame-by-frame and blur it out.”

Police departments can also edit body camera video with low-cost consumer software and free tools, including YouTube Studio, which offers redaction features.

THE LAW

While anyone may request body camera video under the Texas Public Information Act, actually obtaining the footage can be frustrating.

A law enforcement agency can reject a request for body camera video if the request doesn’t include:

1) The date and approximate time of the recording.

2) The specific location where the recording occurred.

3) The name of one or more persons known to be a subject of the recording.

“That really makes it difficult for anyone other than an eyewitness to an event to come along later and request the information,” said attorney Paul Watler of Dallas, an expert in First Amendment issues. “And, quite frankly, I think that was the intent behind that particular provision.”

Even when the request includes a case number or enough information for a law enforcement agency to locate the video, it’s still not required to process the request unless all three pieces of information are provided.

Another major obstacle to obtaining body camera video is cost.

The Texas Administrative Code allows a law enforcement agency to charge $10 per recording, $1 per minute of video and $15 per hour for labor, plus 20% of the labor cost to cover “overhead.”

“There can be significant charges,” Watler said. “Which stand in the way of citizens actually making use of this statute to request body camera video.”

The law also includes exceptions for everything from ongoing investigations to lack of “technological capability” to edit video, the problem cited by South Padre Island and Palmview.

“And so, therefore, the Attorney General — in some instances — has given, basically, a free pass to a law enforcement agency to not have to produce body camera video,” Watler said.

While law enforcement frequently cites technology issues when delaying or denying public information requests, Watler said the software required to redact video is readily available and relatively inexpensive.

“Keep in mind our public information laws are designed to allow the public to understand and to see what law enforcement has done,” Watler said. “After all, law enforcement is acting in the name of the people of the state of Texas.”