Transportation Management Center Video Recording and Archiving Best General Practices

Chapter 6. Legal and Policy Issues including the Freedom of Information Act

The policies that agencies and Transportation Management Centers (TMC) adopt regarding video recording must be within their applicable legal contexts. Since the legal issues vary by State, this section identifies issues, provides general information, and gives recommendations on how agencies can seek the knowledge they need to make informed decisions on portions of policy and procedure that are within their control.

Public information laws directly influence most TMCs that record video. Legal and/or policy concerns were also given as reasons not to record by each of the agencies that stated never recording, with two of them commenting specifically on public information laws. In the words of a representative of an agency that only records under limited circumstances, "It would be a different world if we didn’t need to worry about legal." In two States, representatives for agencies that record on a limited basis indicated that requests for video were not allowed, even under Freedom of Information Act (FOIA) laws. However, the remaining TMC representatives did have some degree of burden addressing requests. Directly or indirectly, this issue appears to have some impact on almost every TMC with regard to decisions on recording and sharing video.

Ask your state's Department of Transportation (DOT) office that handles FOIA requests how it processes release of video. If they do not know, ask them to check with their peers in other departments within the State.

This project did not uncover any instances of legal impetus for maximum allowable downtime of camera or recording systems. The recordings are not safety critical. Some written policies, such as the Minnesota Department of Transportation’s (MnDOT) and the Tennessee Department of Transportation’s (TDOT), specifically say that video is not guaranteed.

Freedom of Information Act

The Federal Freedom of Information Act (FOIA) passed in 1967 is designed to give citizens access to Federal records supporting their rights to know about the functioning of the Government. Since the Federal FOIA only applies to Federal records and the Federal Government does not run TMCs, FOIA itself does not apply to TMCs. However, all 50 States and the District of Columbia have public record laws with a similar intent. Some States use FOIA in the name of their own laws, such as Illinois FOIA. Others use different terminology, such as the Alaska Public Records and Recorders statute; the California Public Records Act; the Hawaii Uniform Information Practice’s Act; the New Jersey Open Public Records Act; the Oklahoma Open Records Act; and the Pennsylvania Right-to-Know Law, just to name a few.

An example of the common purpose among the rules is how Washington’s Public Records Act, RCW §42.17.251, states, "The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created." It is also common that there are points of contact within agencies for making requests and that the requests are in writing (sometimes including email or Web forms.) There is typically a wide range of media covered, such as the following list from North Carolina, "documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts or other documentary material, regardless of physical form or characteristic." (N.C.G.S. § 132-1)

Beyond the major similarities among the Federal FOIA and the State counterparts, there is variability in types of records covered, the exemptions, request procedures, timeframes, costs, and appeals procedures. Over time, original laws are modified and case law sets precedence for interpretations. The rules typically cover release of existing records, but not the records retention policies that may be established if there are records available. These variations contribute the differing impact on FOIA-type State regulations on TMC video recording procedures.

The Federal FOIA includes nine exemptions (records that do not have to be released) and three exclusions (records whose existence isn’t even covered by FOIA). The nine exemptions are national security interest, internal personnel rules of an agency, information prohibited from disclosure by other Federal laws, confidential or privileged trade secrets/commercial information/financial information, information that could invade personal privacy, certain law enforcement information, supervision of financial institutions, and geological information on wells. New Jersey’s Open Public Records Act has 24 exemptions, some of which are analogous to Federal FOIA items, as well as more than a dozen exemptions established by executive orders.

The Minnesota Government Data Practices Act (Minnesota Statutes chapter 13) differentiates between traffic management video/still images and building security cameras. The former are public information and may be made available upon request, though release may be delayed until investigations are complete. Requests are processed by MnDOT traffic staff. Requests for security images undergo further evaluation under the Minnesota Government Data Practices Act and are only released if specific imagery is classified as public data.

While State public information law can be a major consideration for public release of recorded TMC video, it is not the only outlet for recorded video. As noted in the Idaho Public Records Law Manual quoting 4 Idaho Code § 9-343(3) (2011), "…nothing in the law limits the availability of documents and records for discovery in the normal course of judicial or administrative adjudicatory proceedings, subject to the law and rules of evidence and of discovery governing such proceedings." Also, some agencies make video available to the public outside of their jurisdictions' open records request process.

The most common exemption that applies to TMC video, whether technical FOIA requests or other public avenues, is while there is an active law enforcement investigation. During that time, the law enforcement agency has the video, but it cannot be released to other requestors. The TMC may store the video for them until the law enforcement agency concludes its investigation or the TMC may give the only copy to the law enforcement agency for them to release with the rest of the investigation report.

State Public Records Laws and the Necessity of Recording

While FOIA-type laws dictate which records must be released to the public, it is typically State public records laws that dictate if material must be retained. Materials that are not kept do not need to be released. Public records laws could also be part of FOIA legislation. Records laws include both minimum amount of time that materials need to be kept and maximum times.

For example, under Wisconsin law, video on the automatic 72-hour recording loop is not considered a record that must be kept. Footage only becomes a record, and thus subject to open records rules, if it is selected to be kept beyond the 72 hours. In Washington, security video on buses is kept in on-board data storage until it is automatically overwritten. If the video is not downloaded from the on-board storage, it is not a record and does not need to be retained. However, if it is downloaded, it must be kept and released as public record. Washington’s TMC has successfully asserted that video recorded for a study, such as a traffic study, is the equivalent to field photographs. Such foundational material is not subject to public records—only the resulting report is.

While not clearly spelled out in records retention laws, several agencies consulted for this report had spoken with their respective legal counsels and/or law enforcement agencies and did not find that there would be legal consequences for not recording or for not retaining recordings longer than a few days. As one agency who records most feeds for several days and makes them available to the public, the video is kept as a service, not as a right. The primary purpose of the camera feeds is traffic management by agency staff, law enforcement, and emergency responders. Those needs are met by the short-duration loop recording and keeping select clips longer. When discussing with their legal teams, the agencies noted the significant technical and financial burden of keeping large numbers of video feeds archived for more than a few days.

Agencies also noted that they included language in written policies for releasing or sharing video that did not guaranty availability of video, such as due to equipment failure. A legal expert also noted that it would be unlikely that any jurisdiction would have a legal basis for mandating recoding since traffic video is not a safety system.

Video for Use as Evidence

From the perspective of a court of law, legacy video systems producing analog video were typically archived by a video tape, which was fairly straight forward to use as the process of recording was standardized by the playback mechanisms. Digital and IP-based video has complicated this procedure due to a lack of standardization of the technology for playback and storage. An IP-based video camera or encoder uses a compression algorithm to make the image smaller to transmit or store across sometimes limited communications mediums. This process by its nature introduces a degradation of the video that varies by device and potentially by use. How the video was encoded becomes a very important question with respect to video integrity, being able to certify that the video is complete and unaltered since acquisition, and authentication, being able to certify what is seen in the video is/was actually there. Artifacts could vary by compression type and be as simple as periods of no video or vehicles "skipping" in and out of the stream. By extension, if two agencies are recording a single stream, the archival process itself could also introduce additional distortions or artifacts such that if reviewed frame by frame the two stored video images are no longer the same. More simply put, the video encoding process itself could introduce distortions that could affect what image is being displayed which in turn could affect how a court would accept or use the video.

Unfortunately, since video technology varies and often changes more rapidly than laws, there does not seem to be uniformity. For example, there do not seem to be generally accepted compression or video formats for admissibility in courts or requirements for frame-by-frame authentication when live streams are recorded by multiple agencies. However, TMCs have still been successful defending the admissibility of video in court. The best general practices in the call-out box in this section reflect successful strategies.

There are two schools of thought on the TMC keeping an official copy of the video when releasing for legal use (when State law does not otherwise trump.) One is to keep a copy so that comparisons could be done or in case the requesting agency’s copy is corrupted or lost. The other is to turn it over to the requesting agency and then delete it, thereby transferring the burden of maintaining it to the requesting agency.

Video management also offers options. For example, a digital watermark could be added. One agency adds a watermark for their own tracking purposes, rather than for legal proof. Some video management software packages have the capability to export clips in a proprietary format with a player as a strategy for limiting opportunities to tamper with the video. However, as one the agencies noted, it may become a burden to field complaints from the public when they have difficulty using the nonstandard player.

Although anecdotal, it seems that TMC video may not be scrutinized as heavily as video created by law enforcement departments or private companies. TMC video does not have the primary purpose of being evidence and the DOT typically does not have a stake in the outcome of a case involving their video, unlike security cameras used in casinos for instance. Still, if precedent is not clear within an agency already, it is recommended to discuss with law enforcement partners and agency legal counsel while also following a repeatable process and limiting individuals with access to the files.

Privacy

While TMCs generally record in public places, there seems to be a consensus that personally identifying information, such as license plates and faces, should not be shared with the public. For traffic management purposes, that level of detail is not needed and most often camera views and image quality preclude it anyway. For real-time video, agencies that cannot block video to the public may have policies not to zoom far enough to reveal the details. Also, if lower resolution video is shared real-time with the public, even significant zoom may not reveal that level of detail. However, there are instances where an agency may need to zoom in, such as to read hazardous material placards.

Typically, even when agencies can block real-time feeds to the public, the feeds are still recorded, which can bring privacy concerns. However, exemptions for privacy typically applicable to personal information kept for drivers through a Department of Motor Vehicles (DMV) may apply. Where an agency's video system includes security-only feeds, such as on door access, they are typically exempt since they show employees.

Perception of privacy is also a policy and operational concern outside of legal restrictions. Some agencies may choose not to record as a blanket policy to be responsible to local preferences.

Liability

Variations in liability limits and laws affect an agency's risk. There are risks both for the size of possible award to plaintiffs and for the time required by TMC staff during legal discovery. The scale of the liability for award to plaintiffs can vary greatly if the State has a fixed cap, no cap, and/or joint and several liabilities. While agencies are not typically party to legal disputes related to video, when there is joint and several liabilities, particularly with no cap, there is more incentive for the "deep pocket" agency to be scrutinized for liability, even 1 percent. This is another matter in which there is great variability among jurisdictions so it would be necessary to inquire with the agency's legal counsel of applicable liability issues.

The following example of a State addressing liability for sharing real-time video is from the Tennessee DOT (TDOT):

"3. LIABILITY AND INDEMNITY PROVISIONS:

A. To the extent permitted by applicable law, USER agrees to defend, indemnify, and hold TDOT harmless from and against any and all liability and expense, including defense costs and legal fees, caused by any negligent or wrongful act or omission of the USER, or its agents, officers, and employees, in the use, possession, or dissemination of information made available from the [closed-circuit television] CCTV system to the extent that such expenses or liability may be incurred by TDOT, including but not limited to, personal injury, bodily injury, death, property damage, and/or injury to privacy or reputation.

B. The liability obligations assumed by the USER pursuant to this Agreement shall survive the termination of the Agreement, as to any and all claims including without limitation liability for any damages to TDOT property or for injury, death, property damage, or injury to personal reputation or privacy occurring as a proximate result of information made available from the CCTV system."

This excerpt is contained in their Access Agreement for Live Video and Information Sharing (both Responder and Private Entity version) which is in the appendix.