In 2015, South Carolina became the first state to adopt a law requiring the use of body-worn cameras by law enforcement officers, as stated in SC Code Section 23-1-240. Under the law and the implementing guidelines, “[u]niformed officers whose primary function is to answer calls for service and interact with the public, or officers who have a reasonable expectation that they will,” must wear body-worn cameras. State law also requires officers to activate body-worn cameras “[w]hen a uniformed officer arrives at a call for service or initiates any other law enforcement or investigative encounter between an officer and a member of the public.”
Using these cameras generates video footage, and the existence of that documentation creates questions, especially when people request the footage under the SC Freedom of Information Act. City and town officials often have questions about the legal requirements for retaining the footage — especially given the expenses of storing the electronic data — and whether they must release the footage when requested.
Retention requirements
For retention, the adopted guidelines provide that recordings that are “non-investigative, non-arrest, and are not part of any internal investigation” must be retained for a minimum of 14 days. For other recordings, the government must retain them in accordance with the ordinary retention periods provided by the SC Preservation of Evidence Act or any applicable expungement laws.
Disclosure requirements
The public disclosure question is more complex. An agency may choose to release body-worn camera footage “in its discretion.”
Before releasing the footage, however, the agency should consider the privacy interests of the subjects of the recording, especially juveniles and victims. In some cases, the release of body-worn camera footage might violate other state laws.
Considering when an agency must release body-worn camera footage, the law states that the footage is not a public record subject to disclosure under FOIA. An agency is not obligated to provide body-worn camera footage in response to a FOIA request.
Notably, this rule excluding body-worn camera footage from FOIA does not apply to dashboard camera footage because that footage does not fall under the definition of “body-worn camera.” Unless the footage is otherwise exempted under FOIA, that type of footage would have to be released in response to a FOIA request.
Although FOIA does not require the release of body-worn camera footage, state law lists certain entities and persons that may have a right to receive the footage when they request it. For example, the SC Law Enforcement Division, the Attorney General, and circuit solicitors are entitled to receive body-worn camera footage for any “legitimate criminal justice purpose.”
State law also lists several people who are entitled to the footage pursuant to the South Carolina Rules of Criminal Procedure, the South Carolina Rules of Civil Procedure or a court order. These are
- a subject of the recording;
- a criminal defendant or civil litigant, if the recording is relevant to the case;
- a person whose property has been seized or damaged by a crime to which the recording is related;
- a parent or legal guardian of a minor or incapacitated person in the recording; and
- an attorney representing any of these people.
Many local attorneys have concluded that the law requires disclosure to these people only through the court system, either by subpoena in a civil action or prosecution or by other court order. In other words, in the absence of formal legal proceedings or a court order, the agency is not required to release the footage, even to the people identified in the law. However, the agency may, in its discretion, release the footage to the requestor.