City won’t release real-time surveillance footage to the public, possibly violating state law

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Michael Isaac Stein / The Lens

The Lens requested footage from this city crime camera last month. Under a policy that may violate state law, the request was denied.

Since the city of New Orleans opened its Real-Time Crime Monitoring Center in late 2017 — putting dozens, and eventually hundreds, of surveillance cameras online across the city monitoring street corners 24 hours a day — city officials have repeatedly dismissed civil rights advocates’ concerns about privacy and law enforcement abuse.

“If you’re in public, you don’t have that expectation of privacy,” then-Mayor Landrieu said in November 2017, at the center’s unveiling.

“There is no expectation of privacy on a public street,” then-New Orleans Police Department Chief Michael Harrison said last year. “Nowhere in America or in the world is there the expectation of privacy out in the public.”

Still, the city — apparently aware that the footage the cameras gathered did indeed have the potential for misuse, public streets notwithstanding — adopted a stringent policy on how the cameras could be deployed and how the sensitive data they collect could be disseminated.

Most of it can’t be, according to the policy. But an attorney and an open-government expert who spoke to The Lens say the policy doesn’t appear to comply with state sunshine laws.

The City Attorney’s Office has denied several recent footage requests from The Lens and from engineer Matt McBride, who closely monitors the city’s drainage system. Last month, McBride asked for camera footage from July 10, when much of the city flooded during a severe downpour. He hoped to get that footage, which he believed was important to maintain for the record of the event, before it was deleted.

“They just made this policy up out of whole cloth when they started the RTCC,” McBride told The Lens in an interview. “It seems like it’s designed to shield the public from viewing these records.”

Under the policy, only footage that is requested to be “archived” by a public safety agency — typically the police department — is subject to public records requests. Unless there’s a court order for its release, all other, “unarchived” footage is stored for 30 days, shielded from public view, and deleted.

“Footage that is unarchived and unrelated to a public safety incident cannot be made publicly available, specifically for the purpose of protecting privacy rights,” wrote LaTonya Norton, a spokeswoman for Mayor LaToya Cantrell, in an email to The Lens. “In addition to privacy concerns, this policy ensures that public safety cameras are not utilized by ill-intentioned individuals for things like stalking, harassment, racial profiling, and witness intimidation.”

One potential problem with achieving that balance — where the footage is public enough to be collected and stored without violating anyone’s privacy rights but not enough to be handed over to regular citizens — is the state’s expansive public records law, which requires that most of what the government creates be made available on request to the citizens who paid for it. The law provides certain exceptions, like tax records and sensitive public employee personnel information.

The law also allows public bodies to shield certain records in ongoing criminal investigations. That means that much of the crime camera footage that is requested for archiving by the police is legally off-limits to the public. “Unarchived” footage, which almost certainly accounts for most of the footage the city collects and temporarily stores, does not appear to fall under a public records law exception.

“The Public Records Law defines ‘public records’ broadly to include any materials used by a public body.  It includes, expressly, ‘recordings,’ ” said Alysson Mills, an attorney who specializes in First Amendment and media law, in an email to The Lens.

The city has previously granted requests for certain information about the surveillance system, including records showing the types of software the system uses. It has denied others, like a public defender’s request for a map of camera locations. The defender, Laura Bixby, successfully sued for the location records. The city is appealing a Civil District Court judge’s order in that suit.

Daniel Bevarly, the executive director of the National Freedom of Information Coalition, agreed with Mills. The NFOIC, located at the University of Florida College of Journalism and Communications, advocates for open government.

“I don’t see how they can legally deny access to that because everything about it is a public record,” he said. “The proprietorship, the reason they’re doing it, the means.”

In a follow-up email, Bevarly said he discussed the matter with Frank LoMonte, who directs the Freedom of Information Center at the University of Florida.

“He agreed that it does not appear to be legal to say that a human being has to consciously make the decision to archive something before it becomes a record,” Bevarly wrote.

‘Bottom line is I’m extremely frustrated’

McBride has been investigating, and writing about, the city’s drainage system for years. As a blogger at Fix The Pumps, he used public records to investigate the Army Corps of Engineers and the Sewerage and Water Board. He posted Sewerage and Water Board pump logs after citywide floods in August 2017 showing that some of the agency’s pumps were off for hours as neighborhoods filled with water. For a period after the floods, McBride worked as a contractor for the city, helping to evaluate its drainage infrastructure. He has continued to follow city data and file records requests with, writing about what he finds on his Facebook page.

McBride has tried several times since last month to get July flood footage, through several public records requests, repeated conversations and emails with city officials and a subpoena request.

He said he sent his first request for crime-camera footage on July 23. He asked for video from July 10 from two cameras alongside the Lafitte Greenway. He hoped to find footage showing the overtopping of the Lafitte Street Canal — directly downstream from Sewerage and Water Board Drainage Pump Station 2 on Broad Street — causing flooding nearby.

McBride wanted video from two city cameras — one on Broad and one on North White Street — next to the greenway. He thought the videos would be valuable for an evaluation of Sewerage and Water Board operations during the flood — including an “after-action report” — and he was not sure that the agency itself had requested them.

“I put in that first request asking for videos from four a.m. to 2 p.m.” and was, he said, “summarily rejected” based on the city policy. He learned from that denial that the footage would be destroyed 30 days after the flood, meaning this week.

After that first denial, McBride asked me for advice. The city’s denial letter also suggested that he request a subpoena for the footage from the New Orleans Police Department. Though I was not familiar with this mechanism for obtaining records — and had no reason to believe it would work better than a public records request — I found instructions on the city’s website and told McBride he should give it a try. It turned out to be a dead end.

“Your letter to NOPD requesting NOPD to issue a subpoena is not a court-issued subpoena served upon the City,” the City Attorney’s Office wrote to McBride.

I also told him to ask for a legal — not policy-based — justification for the public-records request denial, which is required by the law and was not included in the original denial letter.

The next day, The Lens submitted requests for footage from two cameras, chosen at random. Both were denied. McBride sent a second public records request for footage, which again was denied.

When asked for legal bases for the denials, the city gave McBride and The Lens identical responses.

“The Public Records Law only applies to records ‘having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction, or performance of any business… by or under the authority of … any public body,” the responses, sent through the city’s public records request system, said. “The City’s crime cameras monitor data constantly; however, the data is not prepared, possessed, or retained for use by the City unless a public safety/law enforcement officer requests the footage to be archived in connection with a public safety or law enforcement event. Therefore, unarchived data is not used in the ‘conduct, transaction, or performance of any business, transaction, work, duty, or function’ of the City and is not a public record under the Public Records Law.”

Mills disagreed with that interpretation of the law, as well as the city’s interpretation of what counts as public business.

“The city is conducting public business when it makes these recordings,” she said.

She noted that the city’s response, which cites the part of the law defining “public records,” says that materials “retained for use” by a public body are public.

“As far as I know, the city has pointed only to the statute’s definition, how it defines public records. But these recordings seem to plainly fall within that definition,” Mills said. “The city is conducting public business when it makes these recordings, that’s one part—but it’s also ‘retaining’ these recordings for possible future use, that’s another. So both ways, these recordings fall within the statute’s definition.”

The Lens also requested any footage requested for archiving by the Sewerage and Water Board in the weeks after July 10. McBride requested all records of such requests by any agency. Those requests have been satisfied, though the video and document records that have been released in response do not show the archived footage from the greenway-adjacent cameras McBride was looking for.

“Bottom line is I’m extremely frustrated,” McBride said.

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