Call to Order and Roll Call
The third meeting of the Interim Joint Committee on State Government was held on Wednesday, August 23, 2017, at 10:00 AM, in Richmond, Kentucky, at the Department of Criminal Justice Training on the campus of Eastern Kentucky University. The meeting was a joint meeting with the Interim Joint Committee on Local Government. Senator Joe Bowen, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Joe Bowen, Co-Chair; Representatives Jerry T. Miller, Co-Chair, and Kenny Imes, Co-Chair; Senators Ralph Alvarado, Denise Harper Angel, Morgan McGarvey, Albert Robinson, Dan "Malano" Seum, and Damon Thayer; Representatives Lynn Bechler, John Carney, Will Coursey, Joseph M. Fischer, Derrick Graham, Richard Heath, Dan Johnson, DJ Johnson, Mary Lou Marzian, Reginald Meeks, Phil Moffett, Tim Moore, C. Wesley Morgan, Jason Nemes, Sannie Overly, Jason Petrie, Rick Rand, Jody Richards, Bart Rowland, Attica Scott, Tommy Turner, and Ken Upchurch.
Guests: Representative Robert Benvenuti, 88th House District; President Michael T. Benson, Eastern Kentucky University; Commissioner Mark Filburn, Frank Kubala, and Travis Tennill, Department of Criminal Justice Training; Deputy Secretary Jonathan Grate, Justice and Public Safety Cabinet; J.D. Chaney and Bryanna Carroll, Kentucky League of Cities; Chief Wayne Turner, Kentucky Association of Chiefs of Police; Jason Rothermund, Fraternal Order of Police Bluegrass Lodge 4; Nicolai Jilek, Kentucky Fraternal Order of Police; Sheriff Mike Jansen, Kentucky Sheriff’s Association; Liz Shepherd and Maresa Fawns, Kentucky Justice Association; Judy Taylor, Lexington-Fayette Urban-County Government; and Sara Massey, Louisville Metro Government.
LRC Staff: Mark Mitchell, John Ryan, Joe Pinczewski-Lee, and Cheryl Walters.
Approval of Minutes
A motion to approve the minutes of the July 26, 2017, meeting was seconded and passed without objection.
Opening Remarks and Welcome
Justice and Public Safety Cabinet Deputy Secretary Jonathan Grate welcomed the committees to the Department of Criminal Justice Training (DOCJT) and introduced Commissioner Mark Filburn of DOCJT.
Commissioner Filburn that DOCJT’s mission is to keep law enforcement officers alive. Service is what DOCJT is about as well as preparing officers to protect the citizens of Kentucky with dignity and respect. Eastern Kentucky University (EKU) President Michael T. Benson welcomed the committees and said that EKU likes to think of its school as a school of first responders. EKU has more students from Kentucky than any other school in Kentucky. He thanked the members for their role in approving the capital construction projects at EKU.
Travis Tennill, DOCJT, discussed his personal experience with having to use his weapon on a call and the emotionally-charged consequences that ensued. He discussed the Kentucky Post-Critical Incident Seminar (KYPCIS), which is a three-day seminar modeled after highly successful programs developed by the FBI and South Carolina. Law enforcement professionals and their significant others are able to openly tell their stories, hold small-group discussions, meet one-on-one with mental-health professionals and learn to identify signs of stress and methods to cope. He asked for the General Assembly’s support of the program.
Police Department Utilization of Body Cameras
Representative Robert Benvenuti, who sponsored 2017 HB 416, relating to the disclosure of body-worn camera recordings, said that there is no law in Kentucky that mandates the use of body cameras by law enforcement, nor should there be one. It should be left up to the individual local government. However, with the use, there should be a legislative construct that allows officers to use them efficiently and effectively, or else body camera use will become less prevalent. Privacy rights should be protected for those involved, whether it be the officer, victim, or children. Body cameras can be very helpful for training, evidentiary, and accountability purposes. A situation should not be created where officers are being required for hours to edit or redact footage, rather than engaging in law enforcement.
J.D. Chaney, Deputy Executive Director of the Kentucky League of Cities (KLC), said that Kentucky is the last state to deal with a law for disclosure of recordings from open records. KLC survey other state laws. Florida exempts disclosure of recordings from open records if taken in private resident of health or social services office. Florida law also exempts recordings from disclosure if a person has a reasonable expectation of privacy. Indiana permits inspections without copies to limited class of requestors. Louisiana exempts disclosure without a court order if the law enforcement agency determines the recording “violates an individual’s reasonable expectation of privacy.” Kansas exempts all recordings from police body cameras as criminal investigation records. North Carolina exempts from disclosure except for persons depicted. The law requires a court order for members of the public to gain access. South Carolina exempts from disclosure under the state’s Freedom of Information laws, but specifies several individuals who may obtain copies if they have a legal interest in obtaining them.
Campbell County Sheriff Mike Jansen, representing the Kentucky Sheriff’s Association, said that, for small law enforcement agencies, purchasing body worn cameras would be a financial hardship. This too would create possible cuts for other equipment in the larger agencies’ budgets. Also, storage space would have to be purchased for the videos, depending on how long the videos needed to be stored, which is 30 days at present. In any agency there must be one person, at least, to maintain, edit. and secure all video for its integrity. The cost of the training for each officer in using the body worn cameras would either be addressed at the DOCJT Law Enforcement Academy or in-house for each individual agency.
The Kentucky Sheriff’s Association’s position would be not to mandate through legislation that all agencies must have body worn cameras. This would seriously cause an unfunded mandate upon the many agencies that do not have access to funds for implementation.
Officer Nicolai Jilek, representing the Kentucky Fraternal Order of Police (FOP), said that great care must be taken when releasing body worn camera footage to the news media and others. There must be restrictions against the releasing video that shows the death or serious injury of an officer or citizen, video shot in private homes or in healthcare facilities, and video that reveals law enforcement surveillance or other police tactics that could ultimately compromise the safety of law enforcement and the public. The use of videos on social media can serve to “revictimize” victims and traumatize first responders. The use of a disclaimer that would be posted on the video should be considered, reminding the public that body worn camera video is one angle that typically fails to provide the full context of a situation. It is very easy, yet blatantly unfair ,for the public, the news media, the courts, and outside groups to assume that what they are seeing on the news is the whole picture. That is rarely, if ever, the case, and without that knowledge, body worn camera video can be misunderstood, misrepresented, and exploited.
Officer Jason Rothermund, president of FOP Bluegrass Lodge 4 based out of Lexington, said that, as with any new piece of technology, practices, policies, and even laws must be formed, evaluated, and occasionally revised to ensure that the use of the new technology remains advantageous. Lexington’s police department, over the last year, has implemented body worn cameras with officers in uniformed operations. Since the implementation of the cameras, the Lexington police department has received over 124 open records request for footage. To attempt to keep up with the demand for footage, the department has hired two extra civilian personnel. Not only are the requests time consuming, but the department’s personnel must rely on current open records laws that do not specifically account for the use of body worn cameras. The application of the current laws remains vague when attempting to address concerns of the release of footage, some of which may be sensitive to law enforcement investigations, or operations. In order to support law enforcement agencies around the state, it is imperative that the legislature pass legislation that directly addresses the issue of the public release of body worn camera footage. In an effort to support agencies around the state, as well as legislators around the state, Bluegrass Lodge 4 offers its support for HB 416.
Bellevue Police Chief Wayne Turner, representing the Kentucky Association of Chiefs of Police, said that over the years he has dealt with many open records requests. Recently all 30 agencies received open records requests from a news agency for all body camera videos for the past 5 years. They are still figuring out how to best comply with the request as the request itself was not specific. Libraries and Archives’ guidance controls the retention of video for 30 days unless the video is part of a legal action. He asked that members consider the case of small departments concerning the costs associated with open records requests in crafting future legislation. First and foremost is protecting the privacy of citizens and officers. In certain instances, police tactics do not need to be released.
Mr. Chaney added that the KLC is willing to work with law enforcement, stakeholders, and the legislature on model use policies regarding body worn cameras. He reiterated the language of HB 416.
In response to a question from Senator Seum, Chief Turner said body cameras are available through Homeland Security from programs within DOCJT. Legislation has to be implemented first to regulate the usage of the cameras before they are placed in the field.
In response to another question from Senator Seum, Mr. Chaney said the legislation does not address how long the body camera recordings are held but that the Kentucky Department for Libraries and Archives (KDLA) dictates the retention times of those recordings. Representative Meredith referred members to a retention schedule from KDLA which was included in their folders. He also referred to a study on body camera usage conducted by the Southern Legislative Conference (SLC).
Representative Rothenburger commented that there are other branches of public safety that will be affected such as fire service and urban search and rescue. Representative Benvenuti stated that issue was addressed in the bill.
In response to a question from Representative Scott, Chief Turner stated that the software has limitations to prevent copying or tampering with footage evidence. Concerning cameras that are off, or pointed in the wrong direction, there is a learning curve, but officers are subject to discipline when issues repeat themselves. Continual recording of an officer’s day has privacy issues, but present policy is to have the camera on when interacting with a private citizen.
In response to a question from Representative Flood, Commissioner Filburn stated that no one pushed for the KYPCIS previously. DOCJT is pushing for it now on a state level.
Representative Moore commented that the proper balance has to be found in educating the public and protecting officers and the public. He believes the Veterans, Military Affairs, and Public Protection Committee would be supportive of the KYPCIS.
Commissioner Filburn noted that in training and other situations, certain tactics are demonstrated and could be recorded on body cameras and be subject to open records requests. Having these tactics available for viewing by criminals or terrorists would not be desirable.
Liz Shepherd, with the Kentucky Justice Association, said that she had concerns about HB 416, which requires that any person receiving the body camera footage could not disclose or duplicate the recording without first providing notice to each person whose image is depicted. This can be problematic. For example, attorneys frequently obtain body camera footage of an accident scene as part of investigating how a collision occurred. It would be impossible sometimes to locate all people in the footage and give them notice before sharing the footage with an accident reconstructionist or using it in court.
In response to a question from Representative Nemes, Ms. Shepherd said that it may be helpful if the language of the bill allowed disclosure of the video to their agents or people who are working with them in the litigation without having to locate every person depicted in the video. There is no civil litigation without an adequate investigation.
Representative Riggs suggested contacting crime victims’ organizations on how HB 416 would affect them. Representative Benvenuti stated he has had some of those discussions and that balancing victims’ considerations with making the video more available is important.
In response to a question from Representative Riggs, Commissioner Filburn said the DOCJT’s KYPCIS program is open to all law enforcement agencies.
In response to a question from Senator McGarvey, Representative Benvenuti said it would be a huge cost to mandate that body cameras be worn. No state mandates it.
Representative Miller suggested that there be a cost recovery element in the bill for fulfilling open records requests. Representative Benvenuti said that was an excellent point.
Representative Dan Johnson thanked the sponsor of the bill for cost considerations in the bill’s language and noted the importance of having available the type of help that KYPCIS provides.
In response to a question from Representative Imes, Commissioner Filburn said DOCJT has increased the number of satellite facilities for in-service training in the smaller communities whose officers cannot make the trip to Frankfort, but having a central location for training is still important.
Representative Brown commented that there is an appreciation for law enforcement officials and their professionalism. Do not lose sight of who is supposed to be served and protected as the citizens are the ones who confer the power to protect and serve to the police. Commissioner Filburn said that officers are trained to respect proper use of force. They are trained to protect the Commonwealth with dignity and respect.
In response to a question from Representative Meredith, Commissioner Filburn said DOCJT plans to address the possibility of extending POPS certification to the end of academy time in a cleanup bill.
Representative Meredith announced that there would be a tour of DOCJT’s facilities at the conclusion of the meeting. He also announced that the next meeting of the committees will be September 27.
There being no further business, the meeting was adjourned at 11:45 a.m.