HB-4427, As Passed House, May 23, 2017

SUBSTITUTE FOR

HOUSE BILL NO. 4427

     A bill to exempt from disclosure certain audio and video

recordings recorded by law enforcement officers with a body-worn

camera in certain private places; to describe certain individuals

who may request disclosure of those audio and video recordings; and

to prescribe the powers and duties of certain local and state law

enforcement agencies.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. This act shall be known and may be cited as the "law

enforcement body-worn camera privacy act".

     Sec. 2. As used in this act:

     (a) "Body-worn camera" means a device that is worn by a law

enforcement officer that electronically records audio and video of

his or her activities.

     (b) "Evidentiary audio and video recording" means an audio and

video recording of an incident or encounter recorded by a body-worn

camera, including a crime, arrest, citation, search, use of force

incident, or confrontational encounter with a citizen, that may be

materially useful for investigative or prosecutorial purposes,

including for a criminal and internal investigation.

     (c) "Private place" means a place where an individual may

reasonably expect to be safe from casual or hostile intrusion or

surveillance but does not include a place to which the public or a

substantial group of the public has access.

     Sec. 3. (1) The disclosure of any audio or video recording

recorded by a body-worn camera is subject to the protections

provided for crime victims in sections 8, 19, 19a, 21, 34, 38, 48,

62, 68, and 80 of the William Van Regenmorter crime victim's rights

act, 1985 PA 87, MCL 780.758, 780.769, 780.769a, 780.771, 780.784,

780.788, 780.798, 780.812, 780.818, and 780.830.

     (2) Except as otherwise provided in section 4 and subject to

section 5, a recording recorded by a law enforcement officer with a

body-worn camera that is recorded in a private place is exempt from

disclosure under the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246.

     Sec. 4. Except for an audio and video recording exempted from

disclosure under section 13 of the freedom of information act, 1976

PA 442, MCL 15.243, and section 3(1) or 5, any of the following

individuals may request a copy of an audio and video recording

recorded by a law enforcement officer with a body-worn camera in a

private place:

     (a) An individual who is the subject of the audio and video

recording.

     (b) An individual whose property has been seized or damaged in

relation to a crime to which the audio and video recording is

related.

     (c) A parent of an individual who is less than 18 years of age

described in subdivision (a) or (b).

     (d) A legal guardian of an individual described in subdivision

(a) or (b).

     (e) An attorney who represents an individual described in

subdivision (a) or (b).

     Sec. 5. (1) An audio or video recording from a body-worn

camera that is retained by a law enforcement agency in connection

with an ongoing criminal investigation or an ongoing internal

investigation is not a public record and is exempt from disclosure

under the freedom of information act, 1976 PA 442, MCL 15.231 to

15.246, but only to the extent that disclosure as a public record

would do any of the following:

     (a) Interfere with law enforcement proceedings.

     (b) Deprive a person of the right to a fair trial or impartial

adjudication.

     (c) Constitute an unwarranted invasion of personal privacy.

     (d) Disclose the identity of a confidential source or, if the

record is compiled by a law enforcement agency in the course of a

criminal investigation, disclose confidential information furnished

only by a confidential source.

     (e) Disclose law enforcement investigative techniques or

procedures.

     (f) Endanger the life or physical safety of law enforcement

personnel.

     (g) Disclose information regarding a crime victim in violation

of sections 8, 19, 19a, 21, 34, 38, 48, 62, 68, and 80 of the

William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL

780.758, 780.769, 780.769a, 780.771, 780.784, 780.788, 780.798,

780.812, 780.818, and 780.830.

     (2) An audio or video recording from a body-worn camera that

is retained by a law enforcement agency relating to a civil action

in which the requesting party and the public body are parties is

not a public record and is exempt from disclosure under section

13(1)(v) of the freedom of information act, 1976 PA 442, MCL

15.243.

     Sec. 6. (1) Except as provided in subsections (2) and (3), a

law enforcement agency shall retain an evidentiary audio and video

recording recorded by a body-worn camera for not less than 30 days

from the date the recording is made.

     (2) A law enforcement agency shall retain audio and video

recordings that are the subject of an ongoing criminal or internal

investigation, or an ongoing criminal prosecution or civil action,

until the completion of the ongoing investigation or legal

proceeding.

     (3) A law enforcement agency shall retain audio and video

recorded by a body-worn camera for not less than 3 years after the

date the recording is made if the recording is relevant to a formal

complaint against a law enforcement officer or agency.

     (4) If a complaint against a law enforcement officer or law

enforcement agency is made after the expiration of the retention

period described in subsection (1), (2), or (3) or a law

enforcement agency is unable to produce an audio and video

recording related to the complaint in any criminal prosecution or

civil action as a result of a technical failure or human error,

this act does not create a presumption that the audio and video

recording would corroborate either the prosecution's or the

defendant's version of events in a criminal prosecution or the

plaintiff's or the defendant's version in a civil action.

     Sec. 7. A law enforcement agency may charge a fee for a copy

of an audio and video recording recorded by a law enforcement

officer with a body-worn camera. A fee charged under this section

shall be calculated under and in compliance with section 4 of the

freedom of information act, 1976 PA 442, MCL 15.234.

     Sec. 8. A law enforcement agency that utilizes body-worn

cameras shall develop a written policy regarding the use of the

body-worn cameras by its law enforcement officers and the

maintenance and disclosure of audio and video recordings recorded

by body-worn cameras that complies with the requirements of this

act.

     Enacting section 1. This act takes effect 180 days after the

date it is enacted into law.