### KEN PAXTON ATTORNEY GENERAL OF TEXAS

March 19, 2018

The Honorable Eddie Lucio, Jr. OpinionNo. KP-0186 Chair, Committee on Intergovernmental Re: Whether and when a municipal Ilaw enforcement agency is authorized orrequiredto release audio or video recordings from a body worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality (RQ-0180-KP) Relations Texas State Senate Post Office Box 12068 Austin, Texas 78711-2068

Dear Senator Lucio: You ask four questions regarding a municipal law enforcement agency's duty to release body worn camerarecordings made by a member ofthe agency. 1 Chapter 1701, subchapter N of the Occupations Code addresses law enforcement agencies' use ofbody worn cameras. See TEX. 

### 0cc. CODE §§ 1701.651-.663. It defines "body worn camera" as "a recording device that is: (A) capable ofrecording, ortransmittingto be recordedremotely, video or audio; and (B) worn on the person ofa peace officer, which includes being attached to the officer's clothing or worn as glasses." Id. § 1701.651(1). That chapter also includes specific rules regarding the release to the public ofinformationrecorded by a body worn camera. See id. § 1701.661. Related to these provisions, you ask whether a law enforcement agency may release these recordings in specific circumstances. Yourfirst andthird questions ask aboutrelease ofrecordings whenrequested bymembers ofthe public, so we address those questions together. Youfirst ask: Is a municipal law enforcement agency prohibited from complying, authorized to comply, or required to comply with a request by a member ofthe public to view a recording from a body worn camera if the head of the law enforcement agency determines that the recording could be used as evidence in a criminal prosecutim1 and that allowing the person to view the recording would interfere with the detection, investigation, orprosecution ofa crime?

'See Letter from Honorable Eddie Lucio, Jr., Chair, Senate Comm. on Intergov'tl.Relations, to Honorable Ken Paxton, Tex. J\.tt'y Gen. at 1-2 (Sept. 14, 2017), https://www.texasattorneygeneral.gov/opinion/requests-foropinion-rqs ("Request Letter").The Honorable Eddie Lucio, Jr.

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RequestLetter at 1.2 Section 1701.661 provides that informationrecordedby a body worn camera and held by a law enforcement agency "that is or could be used as evidence in a criminal prosecution is subject to the requirements" ofthe Public Information Act ("the Act"). TEX. 

### 0cc. CODE § 1701.661(d).3 Thus, upon receiving a proper request, a law enforcement agency must release the recordings to the public unless the recordings are excepted from disclosure under the Act or contain information that is confidential or otherwise required by lawto be withheld. 4 Section 552.108(a)(l) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime

. . . if

. . . release of the information would interfere with the detection, investigation, orprosecution ofcrime." TEX. Gov'TCODE § 552.108(a)(l). 5 A law enforcement agency seeking to withhold information under the exception authorized in subsection

. 552.108(a)(l) generally "must ask for a decision from the attorney general about whether the informationis withinthatexception." Id.§ 552.301(a). 6 Therequestfor aruling from theAttorney General must include "written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld." Id. § 552.301(e)(l)(A). Thus, a law enforcement agency seeking to withhold a body worn camera recording under subsection 552.108(a)(l) must explain how and why the release ofthe requested information would interfere with the detection, investigation, orprosecution ofa crime. Uponreceipt ofauthorization from the Attorney General, a law enforcement agency may withhold the recording ofa body worn camera ifreleasing it to a member ofthe public would interfere with the detection, investigation, orprosecution ofa crime. See id.§§ 552.108, .301(a), .306. That said, the exception to disclosure under section 552.108 is discretionary. A law enforcement agency mayrelease informationrecorded by a body worn camerato a member ofthe

2In posing this question, you ask us to "assume that the person requesting to view the recording complies with the requirements ofSection I701.6pl(a), Occupations Code." Id. at 1. That subsection requires a member of the publicto include specific information when submitting a written request for information recorded by a body worn camera. TEX. 0cc. CODE§ 1701.661(a). 3Subsection 1701.661(c) provides that "[e]xcept as provided by Subsection (d), information recorded by a body worn camera and held by a law enforcement agency under this subchapter is not subject to the requirements of Section 552.021, Government Code." Id.§ 1701.661(c); see also TEX. Gov'TCODE § 552.021 ("Public information is available to the public at a minimum during the normal business hours ofthe governmental body."). 4Subsection 1701.661(f) prohibits a law enforcement agency from releasing a portion ofa recording "made in a private space, orofarecording involvingthe investigation ofconductthat constitutes a misdemeanorpunishable by fine only and does not result in arrest, without written authorization from the person who is the subject ofthat portion ofthe recording or, ifthe person is deceased, from that person's authorized representative." TEX. 0cc. CODE § 1701.661(f). 5Your question relates specificallyto the exception to disclosure in section 552. I08(a)(I) ofthe Government Code, but a "law enforcement agency may ... assert any exceptions to disclosure in Chapter 552, Government Code, or other law." Id§ 1701.661(e)(2). 6Subsection 1701.662(a) requires that a governmental body request a decision "from the attorney general about whether a requested body worn camerarecording falls within an exception to public disclosure" not later than the 20th business day after the date ofreceipt ofthe written request. Id. § 1701.662(a). Subsection (c) requires that a governmental body submit the information required by section 552.301(e) ofthe Government Code not later than the twenty-fifth business day after the date ofthe receipt ofthe request. Id. § I701.662(c).The Honorable Eddie Lucio,Jr.
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public "after the agency redacts any information made confidential under Chapter 552, Government Code, or other law." TEX. 

### 0cc. CODE§ 1701.661(e)(3). The Act "does not prohibit a governmental body or its officerfor public information from voluntarily makingpart or all ofits information available to the public, unless the disclosure is expressly prohibited by law or the information is confidential under law." TEX. Gov'TCODE§ 552.007(a). Relatedly, your third question specifically regards a recording that "could be used as evidence in ajuvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording." Request Letter at 2. The Act excepts from public disclosure "information consideredto be confidential by law, either constitutional, statutory, orby judicial decision." TEX. Gov'TCODE§ 552.101. Section 58.008(b) ofthe Family Code provides that, with limited exceptions, "law enforcement records concerning a child and information concerning a child that are stored by electronic means or otherwise and from which a record could be generated may not be disclosed to the public." TEX. FAM. CODE § 58.008(b). 7 Thus, a law enforcement agency generally may not release to a member ofthe public a body worn camera recording that could be used as evidence in ajuvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording. Your second and fourth questions ask about requests by a member ofthe governing body ofthe municipality or by a civilian employee ofthe municipality, and we address those questions together. You specifically ask: Is a municipal law enforcement agency prohibited from complying, authorized to comply, or required to comply with a request by a member ofthe governing body ofthe municipality or by a civilian employee ofthe municipality whose duties include supervision or oversight ofthe law enforcement agency (such as a city manager) to view a recording from a body worn camera ifthe head ofthe law enforcement agency determines that the recording could be used as evidence in a criminal prosecution and that allowing the person to viewthe recording would interfere withthe detection, investigation, orprosecution ofcrime? Request Letter at 1. Assuming a request is made in the requestor's official capacity, a request by a member ofthe governing body ofthe municipality or a civilian employee in an oversight role is not a request by the "public" under the Act. See Tex. Att'y Gen. Op. No. JC-0283 (2000) at 3. Thus, the exception inthe Act allowing the agency to withhold the recordings from the public due to interference withthe detection, investigation, or prosecution ofa crime is not applicable. A municipal law enforcement agency is established by and accountable to the governing body ofthe municipality. See TEX. Loe. Gov'T CODE§§ 341.003 ("A home-rule municipality may provide for a police department."); 341.00l(a) ("The governing body ofa Type A generallaw municipalitymay establish and regulate a municipal police force."). While we have found no

7Subsection 58.008(d) authorizes ajuvenilejustice agency, acriminaljustice agency, the child, orthe child's parent or guardian to inspect or copy law enforcementrecords concerning a child. TEX. FAM. CODE§ 58.008(d).The Honorable Eddie Lucio, Jr.

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Texas court decisions addressing this issue in the context ofmunicipal law enforcement agency records, "Texas attorneys general have consistently concludedthat a member ofa governing body has an inherent right ofaccess to the records ofthat body when requested inthe member's official capacity and for the member'sperformance ofofficial duties." Tex. Att'y Gen. Op. No. KP-0021 (2015) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0138 (2004) at 3, JC-0283 (2000) at 3, JC-0120 (1999) at 3, JM-119 (1983) at 3. We find no law authorizing a municipal lawenforcement agency to withhold from a member ofthe municipal governing body arecording from abodyworncamera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures ofthe municipality. See Tex. Att'y Gen. Op. No. JC-0283 (200Q) at 4 (authorizing the release of confidential information to the city managerupon consentofthe governingbody ofthe municipality); TEX. 

### 0cc. CODE§ 1701.655(a), (b)(6) (requiring a law enforcement agency that operates a body worn cameraprogram to adopt a policy for the use ofbody worn cameras, including procedures for supervisory or internal review). Finally, you also ask about a member ofthe governing body's access to a recording that "couldbe used as evidence in ajuvenile courtproceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording." Request Letter at 2. Family Code subsection 58.008(b) generallyprohibitsthe release oflawenforcementrecords concerning a child "to the public." TEX. FAM. CODE§ 58.008(b). As discussed above, a request by a member ofthe governing body ofthe municipality or a civilian employee in an oversight role is not a request by the public. Therefore, subsection 58.008(b) does not restrict a member ofthe governi;ng body's access to recordings involving a child.The Honorable Eddie Lucio, Jr.

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### SUMMARY Pursuant to section 552.108(a)(l) ofthe Government Code, upon receiving authorization from the Attorney General, a law enforcement agency may withhold the recording of a body worn cameraifreleasing itto a member ofthe public wouldinterfere with the detection, investigation, or prosecution of a crime. The exception to disclosure under section 552.108 is discretionary, and a law enforcement agency may release information recorded by a bodyworn camerato amemberofthepublic afterthe agencyredacts any informationmade confidential by law. With narrow exceptions, section 58.008 ofthe Family Code prohibits a law enforcement agency from releasing to a member of the public a body worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording. Amunicipal lawenforcementagencymaynotwithholdfrom a member ofthe municipal governing body a recording from a body worn camera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will dependonthe authoritygiventhose employeesbythemunicipal governing body and the internal policies and procedures of the municipality.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours

KEN PAXTON Attorney General ofTexas