Joseph E. Martineau, Member

For years, many law enforcement agencies have used vehicle dashboard-mounted recording devices. More recently, some have started using cameras that are worn or carried.

In Missouri, there is no law requiring that such recordings be made: individual law enforcement agencies may decide that issue on their own. And until recently, the law was unclear on whether such recordings, if made, are available to the public. Effective August 28, 2016, the Missouri Sunshine Law (Chapter 610, R.S.Mo.) was revised to address mobile video recordings.

What Is a Mobile Video Recording?

The revision defines "mobile video recordings" to include data (audio, video, and metadata) captured by a system or device that is capable of being installed in a vehicle or being worn or carried by law enforcement, and includes camera and recording capabilities. R.S.Mo. §610.100.1 (6), (7).

When Is a Mobile Video Recording Available to the Public?

In general, under the revised statute, mobile video recordings are treated like investigative reports: they are deemed closed records until the investigation becomes "inactive," at which point the mobile video recording is considered an open record. R.S.Mo. §610.100.2(1). An investigation is considered "inactive" when (1) the law enforcement agency has decided not to pursue the case; (2) the time to file criminal charges has expired pursuant to the applicable statute of limitations or 10 years, whichever is earlier; or (3) the convictions of all individuals convicted on the basis of the record are final and either the time for appeal is expired or all appeals have been exhausted. R.S.Mo. §610.100.1(3).

What about Mobile Video Recordings in a Private Setting?

A mobile video recording is authorized to remain closed, despite the investigation's becoming inactive, where the recording occurs in a "nonpublic location." R.S.Mo. §610.100.2(3). A "nonpublic location" is defined as, "a place where one would have a reasonable expectation of privacy, including but not limited to a dwelling, school, or medical facility." R.S.Mo. §610.100.1(8). Though such recordings are not publicly available, individuals depicted in a nonpublic recording are entitled to a complete, unaltered, and unedited copy upon written request. R.S.Mo. §610.100.2(3). Under this clause, that right is granted also to an attorney for the person depicted; the insurer of the person depicted; the parent or legal guardian of the person depicted where s/he is a minor; and a parent, spouse, or child of the person depicted if s/he is deceased or incompetent.

Where a person submits a written request and receives a mobile video recording that was recorded in a nonpublic location, that person is prohibited from displaying or disclosing the video, including a "description or account of any or all of the mobile video recording," until s/he provides direct third-party notice to each non-law enforcement person whose image or sound is also contained in the video. R.S.Mo. §610.100.8. The person in receipt of the notice then has 10 days to file and serve an action requesting a court order to enjoin some or all of the intended display, disclosure, description, or account of the recording. R.S.Mo. §610.100.8. That clause also explicitly provides that a person who releases such footage in violation of this provision is subject to civil damages.

Is Relief Available to Persons Wanting Access to an Otherwise Closed Mobile Video Recording?

The revised law also makes clear that, as with investigative reports, a person may bring a circuit court action requesting the disclosure of a mobile video recording that would otherwise be closed. R.S.Mo. §610.100.5. In determining whether to order the disclosure, the court is directed under R.S.Mo. §610.100.5(2) to consider the following factors:

• Whether the benefit to the person bringing the action or to the public outweighs any harm to the public, to the law enforcement agency or any of its officers, or to any person identified in the mobile video recording in regard to the need for law enforcement agencies to effectively investigate and prosecute criminal activity;
• Whether the mobile video recording contains information that is reasonably likely to disclose private matters in which the public has no legitimate concern;
• Whether the mobile video recording is reasonably likely to bring shame or humiliation to a person of ordinary sensibilities; and
• Whether the mobile video recording was taken in a place where a person who was recorded or depicted has a reasonable expectation of privacy.

The law also includes a new section that provides guidance to the courts as to the types of orders that can be made when ruling on whether to open an investigative report or mobile video recording. R.S.Mo. §610.100.5(4). This clause provides that the court "may make any order that justice requires." However, the clause also states that the court can issue an order that provides one or more of the following:

• That the mobile video recording or investigative report may be disclosed only on specified terms and conditions, including a designation of the time or place;
• That the mobile video recording or investigative report may be had only by a method of disclosure other than that selected by the party seeking such disclosure;
• That the scope of the request be limited to certain matters;
• That the disclosure occur with no one present except persons designated by the court;
• That the mobile video recording or investigative report be redacted to exclude, for example, personally identifiable features or other sensitive information;
• That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.

Conclusion

While some states require expeditious public disclosure of recordings made by law enforcement in the performance of official duties, and other states impose substantial restrictions on such disclosure, Missouri has taken a somewhat middle-ground approach requiring disclosure only after any investigation prompted by the activity recorded is concluded. In most cases, this would not seem to prohibit disclosure when deemed helpful to an investigation, and persons, including media entities, denied access are permitted to ask a court to order release.