Updated March 3, 2022

 

Senate Bill 158 (S.B. 158) took effect on September 1^st of this year. This law amends Chapter 1701, subchapter N of the Occupations Code and authorizes Texas law enforcement agencies to apply for grants to help cover the costs of implementing a body camera program. Additionally, the law addresses some retention requirements for the video records produced by body cameras. We’ve already started receiving questions from local governments about the records management implications of such programs. Here are a few common questions.

Is a body camera video a record?

Yes. The Local Government Records Act (LGRA) in §201.003 defines a local government record as “any document… [including] sound or video recording… created or received by a local government or any of its officers or employees pursuant to law, including an ordinance, or in the transaction of public business” (emphasis added).

Therefore, videos produced by a body camera worn by a peace officer are local government records because they are created by an employee (a peace officer) of a local government in the transaction of the public business (keeping the peace and enforcing the state and local laws).

How long do I retain the videos?

Law enforcement agencies who receive a grant under S.B. 158 from the governor’s office to implement a body camera program “shall adopt a policy for the use of the body cameras” (§1701.655(a)). This policy must include “provisions relating to data retention, including provisions requiring the retention of video for a minimum period of 90 days” (§1701.655(b)(2)) (emphasis added).

S.B. 158 further states that all videos “documenting an incident that involves the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer may not be deleted, destroyed, or released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded” (§1701.660(a)).

Does this mean a law enforcement agency can delete all body camera videos after 90 days as long as they don’t document use of deadly force by an officer or aren’t part of a criminal or administrative investigation of an officer? And after the investigations conclude, they can delete those videos, too?

Well, no. S.B. 158 only tells law enforcement agencies how long they must retain the videos. The legislature describes the rules for dispositioning a local government record, including its destruction by deletion, in the LGRA. §202.001(a)(1) states that a local government record “may be destroyed if the record is listed on a records control schedule accepted for filing by the director and librarian [of TSLAC] as provided in Section 203.041 and either its retention period has expired or it has been microfilmed or stored electronically…”

In other words, Texas law says before a law enforcement agency can delete body camera videos, the agency must:

1. be in compliance;
2. classify the videos in a record series on an approved retention schedule; and
3. wait until the retention period has expired.

So when can I delete the videos?

Videos taken by body cameras worn by peace officers are not currently covered by TSLAC’s local government retention schedules. TSLAC will address these records when revisions are made to the local government schedules next year. Until the local government schedules are updated, law enforcement agencies are advised to do one of the following:

• If you have a Declaration of Compliance on file with TSLAC…

Classify the body camera videos as PS4125-05: Offense Investigation Records. A local government in compliance may then delete the videos after the retention period listed in this series, subject to a destruction hold.† For videos that don’t document use of deadly force by an officer, relate to a criminal or administrative investigation of an officer, or document an alleged criminal act committed by a suspect, use PS4125-05a and treat 90 days as the statute of limitations.

• If you want to create a custom body camera records series…

A local government can create an internal amendment to its records control schedule to include videos produced by body cameras worn by peace officers.

For videos capturing an alleged criminal act committed by a suspect, TSLAC currently recommends either using series PS4125-05 or creating a third subseries to PS9999-01, as suggested below.

† Remember, §202.002 of the LGRA requires local governments to place a destruction hold on a record whose subject matter is in litigation or requested by a member of the public under Chapter 522, Government Code (commonly called a public information request), until the litigation or request is resolved. Local retention schedule PS further requires a destruction hold on records whose retention period has expired or does expire during any litigation, claim, negotiation, audit, public information request, administrative review, or other action involving the record. This prohibition applies whether a local government classifies the record as PS4125-05 or amends its schedule to include a body camera series.

• Or, retain videos permanently…

A local government in compliance may choose to retain all body camera videos permanently rather than using PS4125-05 or amending their records control schedule until TSLAC is able to publish a revised edition of retention schedule PS that includes body camera videos. A local government not in compliance must retain all records, including body camera videos, until it is in compliance.

If you have any questions concerning this topic or for any other records management topic, please contact your analyst.